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800 | https://www.mspb.gov/decisions/nonprecedential/Young_RichardDC-0752-19-0658-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD YOUNG,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-19-0658-I-1
DATE: August 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Eden Brown Gaines , Esquire, Washington, D.C., for the appellant.
Lori A. Ittner , Esquire, and Stephanie Ramjohn Moore , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his indefinite suspension appeal for lack of jurisdiction based on his
prior election to proceed with a whistleblower reprisal claim before the Office 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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Special Counsel (OSC). For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2The appellant was a GS-15 Supervisory Information Technology Specialist
for the agency. Initial Appeal File (IAF), Tab 6 at 18. He was required to
maintain a security clearance as a condition of employment. Id. at 136-37. On or
about March 9, 2017, the agency withdrew the appellant’s eligibility to access
classified information. Id. at 11. On November 13, 2018, the agency proposed
his indefinite suspension based on his loss of eligibility to access classified
information. Id. at 12-14. After he responded, on February 15, 2019, the agency
issued a decision indefinitely suspending him. Id. at 131-34, 216-20.
¶3On July 9, 2019, the appellant filed a Board appeal of his indefinite
suspension under 5 U.S.C. § 7513(d).2 IAF, Tab 1 at 4. During the pendency of
the proceedings, it came to the administrative judge’s attention that the appellant
had an individual right of action (IRA) appeal pending that concerned, among
other things, the same indefinite suspension.3 Young v. Department of
2 The appellant alleged that he did not receive the agency’s decision letter until July 3,
2019. IAF, Tab 1 at 4. After considering the parties’ submissions on this issue, the
administrative judge denied the agency’s motion to dismiss the appeal as untimely.
IAF, Tabs 9-12, Tab 19 at 10-12.
3 The appellant’s IRA appeal was assigned to a different administrative judge and
originally concerned his indefinite suspension. Young v. Department of Agriculture ,
MSPB Docket No. DC-1221-20-0175-W-1, Appeal File (W-1 AF), Tab 15 at 2. The
administrative judge issued an order on jurisdiction finding that the Board does not
have authority to review agency actions based on security clearance determinations,
including the appellant’s indefinite suspension. W-1 AF, Tab 18 at 2. In
February 2024, the appeal was dismissed without prejudice “to await the outcome of the
appellant’s pending district court case.” Young v. Department of Agriculture , MSPB
Docket No. DC-1221-20-0175-W-8, Appeal File, Tab 9 at 1. The appellant’s district
court case includes claims of discrimination, harassment, and reprisal under Title VII
concerning, among other things, his indefinite suspension. Young v. Vilsack, Case No.
1:19-cv-02144-RC (D.D.C.). 2
Agriculture, MSPB Docket No. DC-1221-20-0175-W-1. The administrative judge
notified the parties that the Board may lack jurisdiction over the appeal to the
extent that the appellant elected to contest his indefinite suspension before OSC
in the context of a whistleblower reprisal complaint before he filed the instant
Board appeal under chapter 75. IAF, Tab 19 at 12-15. He ordered the parties to
file evidence and argument on the issue. IAF, Tab 20.
¶4After the parties responded, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 23, Initial
Decision (ID) at 2, 7. He found that, on or about July 3, 2019, the appellant’s
representative learned that the indefinite suspension had been effected, and she
informed the OSC investigator handling the appellant’s already-pending OSC
complaint. ID at 2. Approximately 6 days later, the appellant filed the instant
Board appeal to contest the indefinite suspension as an otherwise appealable
action. Id. In light of these facts, and considering that OSC’s October 17, 2019
close-out letter listed the indefinite suspension among the issues that OSC
investigated, the administrative judge found that the appellant made a prior
election under 5 U.S.C. § 7121(g) to contest his indefinite suspension before OSC
and that the Board therefore lacks jurisdiction over the instant appeal. ID at 2-7;
IAF, Tab 21 at 30.
¶5The appellant has filed a petition for review, disputing the administrative
judge’s legal analysis. Petition for Review (PFR) File, Tab 1. The agency has
not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6Under the 1994 amendments to the Whistleblower Protection Act, an
employee subjected to an action appealable to the Board who alleges that the
contested action was taken in reprisal for whistleblowing may elect to pursue a
remedy through only one of the following remedial processes: (1) an appeal to
the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable3
negotiated grievance procedure; or (3) a complaint seeking corrective action from
OSC under 5 U.S.C. §1211-1222. 5 U.S.C. § 7121(g); Requena v. Department of
Homeland Security , 2022 MSPB 39, ¶ 7. Whichever remedy is sought first by an
aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in either of the other two fora. Scalera v. Department of the
Navy, 102 M.S.P.R. 43, ¶ 9 (2006).
¶7On review, the appellant challenges the administrative judge’s finding that
he made a prior election under 5 U.S.C. § 7121(g) to contest his indefinite
suspension before OSC and, therefore, that the Board lacks jurisdiction over the
instant appeal pursuant to 5 U.S.C. chapter 75. ID at 1, 3-7; PFR File, Tab 1
at 4-8. After the administrative judge issued his initial decision, the Board issued
its decision in Requena, in which it held that supervisors and management
officials are excepted from the election of remedies provisions of 5 U.S.C.
§ 7121(g). Requena, 2022 MSPB 39, ¶ 11. In Requena, the Board explained that
5 U.S.C. § 7103(a)(2) narrowly defined “employee” as excluding a “supervisor”
or “management official.” Id. Because the election of remedies statute for “an
aggrieved employee” falls within chapter 71, it is, therefore, subject to this
narrower definition of “employee.” Id.
¶8Because the administrative judge did not have the benefit of this decision,
he did not address whether the appellant met the definition of “supervisor” or
“management official” and was, thus, not subject to the election of remedies
limitations. For the reasons discussed below, we vacate the initial decision and
remand this appeal for the administrative judge to determine whether the
appellant is subject to the election of remedies limitations.
¶9Here, it is undisputed that the appellant’s classification title was
“Supervisory Information Technology Specialist.” IAF, Tab 1 at 14, Tab 6 at 18.
His position description indicates that his organizational title was “Director,
Information Services Division/Chief Information Officer” and that he had
managerial and supervisory duties. IAF, Tab 6 at 90-93. For example, as for4
managerial duties, the appellant was “responsible for management oversight of
[IT] support for both Washington and its field locations,” he “act[ed] as the
agency’s technical authority with considerable freedom for control over
development and administration of the IT function” whose “[d]ecisions,
recommendations and conclusions are generally accepted as authoritative.” Id.
at 90. Additionally, his supervisory duties included “oversee[ing] . . . several
program segments (each of which is managed through separate subordinate
organizational units).” Id. at 91. The record also contains the appellant’s
performance plan, progress review, and appraisal worksheet, which is on a form
“for supervisory positions,” and shows that “leadership/management or
supervision” was one of his critical elements. Id. at 98-100. These documents
suggest that the appellant is a “supervisor” and “management official,” as defined
by 5 U.S.C. § 7103(a)(10)-(11), rather than an “employee,” as defined by
5 U.S.C. § 7103(a)(2). If that is so, the appellant is not subject to the election of
remedies provisions of 5 U.S.C. § 7121(g). However, the nature of the
appellant’s position as it relates to this statutory scheme was not argued below or
on review. We therefore find it appropriate to remand this appeal for further
proceedings. See Requena, 2022 MSPB 39, ¶ 15.
¶10On remand, the administrative judge should first give the parties an
opportunity to present argument and evidence about the nature of the appellant’s
position. If the administrative judge determines that the appellant is a
“supervisor or a management official,” and not an “employee” for purposes of
chapter 71, subject to the election of remedies provisions at 5 U.S.C. § 7121(g),
he must then proceed with adjudicating the appellant’s chapter 75 indefinite
suspension appeal, including holding the appellant’s requested hearing.
¶11As mentioned above, because it appears that the appellant’s district court
case may decide matters that overlap with the issues in the appellant’s pending
IRA appeal, we do not believe the administrative judge in that appeal abused her
discretion in dismissing it without prejudice. Based on the circumstances here,5
we are not directing the regional office to join the instant chapter 75 appeal with
the appellant’s IRA appeal; however, the regional office may choose to do so if it
determines that it would serve adjudicatory efficiency. See 5 C.F.R. § 1201.36.
ORDER
¶12For the reasons discussed above, we remand this case to regional office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Young_RichardDC-0752-19-0658-I-1_Remand_Order.pdf | 2024-08-02 | RICHARD YOUNG v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-19-0658-I-1, August 2, 2024 | DC-0752-19-0658-I-1 | NP |
801 | https://www.mspb.gov/decisions/nonprecedential/Golden_SteveDC-0432-23-0167-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVE GOLDEN,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0432-23-0167-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David A. Branch , Esquire, Washington, District of Columbia, for the
appellant.
Robert Gregory Palmer , Esquire, and William Christopher Horrigan ,
Esquire, Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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 performance-based removal and denied his affirmative defense of
failure to accommodate. On petition for review, the appellant challenges 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 finding that he failed to prove that he was disabled, and
that the agency failed to accommodate his disability. Petition for Review (PFR)
File, Tab 1 at 7-9. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The administrative judge correctly found that the appellant’s
performance-based removal was supported by substantial evidence. Initial
Appeal File (IAF), Tab 20, Initial Decision (ID) at 8-9.2 In finding that the
2 Below, the parties stipulated that all elements of the agency’s burden of proof under
5 U.S.C. § 4303 have been met. IAF, Tab 17 at 1 & n.1. The parties also specifically
stipulated that the appellant’s performance was unacceptable both prior to and during
the performance improvement period (PIP). Id.; see Santos v. National Aeronautics
& Space Administration , 990 F.3d 1355, 1360-61 (Fed. Cir. 2021). The Board’s
regulations provide that the parties may stipulate to any matter of fact and that such
stipulations satisfy a party’s burden of proving the fact alleged. See 5 C.F.R.
§ 1201.63; see also Anderson v. Tennessee Valley Authority , 77 M.S.P.R. 271, 275
(1998). The elements necessary to support a chapter 43 action concerning whether the
Office of Personnel Management approved the appraisal system, whether the
performance standards were communicated to the appellant, whether the appellant was
warned of performance inadequacies, and whether the appellant’s performance was
unacceptable prior to his placement on the PIP and following the completion of the PIP
are pure questions of fact and were, thus, properly stipulated to and relied on by the
administrative judge. However, stipulations concerning matters of mixed fact and law
are not binding on the Board, and the Board must resolve for itself whether the agency2
appellant failed to establish his affirmative defense of failure to accommodate,
she concluded that the appellant failed to present sufficient evidence that his
inability to work was caused by a disability, and that, even if he had, the agency
nonetheless engaged in an interactive process with him to find an acceptable
accommodation, did accommodate him to the best of its ability, and that the
appellant failed to identify what, if any, accommodation the agency could have
provided him with but did not. ID at 10-14. We agree that the appellant failed to
establish that the agency failed to accommodate him, and the appellant’s
arguments on review do not provide a basis to disturb that conclusion. See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence as
a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
¶3However, with respect to the administrative judge’s threshold finding that
the appellant failed to prove that his inability to perform satisfactorily was due to
a disability, we acknowledge that the appellant’s testimony that he regularly
heard high-pitched noises and voices that threatened him and that he perceived
that lasers were extracting information from him and his dog, patently suggests a
mental health condition. IAF, Tab 18, Hearing Recording (HR) (testimony of the
appellant). Nonetheless, the administrative judge is correct that the record
contains no medical diagnosis of a physical or mental health condition or
disability, and the appellant himself does not appear to believe that his
experiences were the result of a mental health condition but rather, the work of
his prior employer.
proved such matters. See Anderson, 77 M.S.P.R. at 275. Here, the elements concerning
whether the appellant’s performance standards are valid and whether the agency
provided the appellant with a reasonable opportunity to improve his performance
constitute matters of mixed fact and law. Nonetheless, the appellant has not challenged
that the agency met its burden of proof with respect to these elements, and the record
otherwise supports that conclusion. 3
¶4We need not determine whether the administrative judge’s finding with
respect to whether the appellant suffers a disability is correct, however, because
the Americans with Disabilities Act (ADA)3 requires an employee to show that he
is a qualified individual with a disability to be entitled to a reasonable
accommodation. 42 U.S.C. § 12112(a); see Haas v. Department of Homeland
Security, 2022 MSPB 36, ¶¶ 28-29. To be a qualified individual with a disability,
the appellant must show that he can “perform the essential functions of the . . .
position that [he] holds or desires” with or without reasonable accommodation.
42 U.S.C. § 12111(8); Haas, 2022 MSPB 36, ¶ 28. Here, the appellant has not
argued that he could perform the essential functions of his position had only the
agency granted him a reasonable accommodation. Indeed, the appellant has not
identified any accommodation that would have addressed his mental health
condition in such a way that his performance would improve. Accordingly,
regardless of whether the appellant proved that he was disabled because of a
mental health condition, he has failed to prove that he is a qualified individual
with a disability. Based on the foregoing, we ultimately agree with the
administrative judge’s conclusion that the appellant failed to establish his failure
to accommodate affirmative defense, and we 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
3 The Board adjudicates claims of disability discrimination raised in connection with an
otherwise appealable action under the substantive standards of section 501 of the
Rehabilitation Act. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28.
The standards under the ADA, as amended by the Americans with Disabilities Act
Amendments Act of 2008, have been incorporated into the Rehabilitation Act, and the
Board applies them to determine whether there has been a Rehabilitation Act violation.
Id.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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 | Golden_SteveDC-0432-23-0167-I-1_Final_Order.pdf | 2024-08-01 | STEVE GOLDEN v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0432-23-0167-I-1, August 1, 2024 | DC-0432-23-0167-I-1 | NP |
802 | https://www.mspb.gov/decisions/nonprecedential/Onye_Chuma_C_DC-0752-23-0134-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHUMA CHARLES ONYE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-23-0134-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chuma Charles Onye , Fairfax, Virginia, pro se.
Ana Olman , Esquire, and Carmen N. Huff , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal for conduct unbecoming, lack of candor, and failure to
report. On petition for review, the appellant reargues his affirmative defense 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 agency violated his due process rights, disputes the administrative judge’s
findings as to the reasonableness of the penalty and argues that his misconduct
was due to a mental disorder, and alleges that the hearing was not fair and
impartial and that the administrative judge was negatively biased against him.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
2 The agency filed a response to the appellant’s petition for review on July 8, 2023.
Petition for Review (PFR) File, Tabs 5, 6. On July 11, 2023, the Office of the Clerk of
the Board notified the agency that its response was due by July 7, 2023, and thus that it
appeared to be untimely filed. PFR File, Tab 8. The agency subsequently submitted a
motion to accept its filing as timely or to waive the time limit, explaining that it had
attempted to timely file its response at 1:30 p.m. on July 7, 2023, but that the Board’s
e-Appeal system was experiencing an outage that persisted through at least 9:00 p.m.
that day. PFR File, Tab 9. The agency attached the Board’s e-Appeal outage notice, its
July 7, 2023 email to the Board and the appellant with the agency’s response and an
explanation that it had been unable to file it due to the Board’s system outage, and
explained that the agency filed its response as soon as it was able to at 7:53 a.m. on
July 8, 2023. Id. at 5-12. Given the circumstances, we find that the agency has
established good cause for its untimely filing, and we grant its motion. See Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980) (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 her case); 5 C.F.R. § 1201.114(g); see
also Boykin v. U.S. Postal Service , 104 M.S.P.R. 460, ¶ 6 (2007) (excusing a 1-day
delay in filing when an appellant’s representative reported making multiple attempts to
timely file and the Board’s records reflected a high incidence of users reporting
problems with the e-Appeal system during the date in question). We have considered
the agency’s response.2
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 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 | Onye_Chuma_C_DC-0752-23-0134-I-1_Final_Order.pdf | 2024-08-01 | CHUMA CHARLES ONYE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-23-0134-I-1, August 1, 2024 | DC-0752-23-0134-I-1 | NP |
803 | https://www.mspb.gov/decisions/nonprecedential/Satchell_JohnSF-1221-22-0128-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN SATCHELL,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-1221-22-0128-W-2
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Clairanne Wise , Esquire, and Judson R. Peverall , Esquire, Springfield,
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 and the agency has filed a cross
petition for review of the initial decision, which denied the appellant corrective
action in his individual right of action appeal. On petition for review, the
appellant argues, among other things, 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 he did not make a protected disclosure around August 2012 and did
not establish contributing factor regarding his non-selection for a position in
Bern, Switzerland or transfer to Seattle, Washington. On cross petition for
review, the agency argues, among other things, t hat the administrative judge erred
in finding that the appellant was perceived to be a whistleblower and in finding
that the appellant made protected disclosures in his fall 2009 interview with the
Office of Professional Responsibility (OPR). 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).
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 apply the
knowledge/timing test to the appellant’s Seattle transfer and find that the
appellant did not satisfy that test, we AFFIRM the initial decision.
¶2The agency contends in its cross petition for review, citing
pre-Whistleblower Protection Enhancement Act (WPEA) case law from the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit), that the administrative
judge erred in finding that the appellant made protected disclosures in his fall
2009 interview with OPR, because disclosures made as part of one’s normal
duties are not protected as a matter of law. Petition for Review (PFR) File, Tab 6
at 17-19. Although we disagree with the agency’s position regarding the2
appellant’s fall 2009 disclosures, we agree with the agency that, in the initial
decision, the administrative judge contradicted his earlier jurisdictional ruling
that the Board lacked jurisdiction over the appellant’s OPR interview.2 Id. at 17;
Satchell v. Department of Justice , MSPB Docket No. SF-1221-22-0128-W-1,
Initial Appeal File (IAF), Tab 25 at 10-11; Satchell v. Department of Justice ,
MSPB Docket No. SF-1221-22-0128-W-2 (W-2 AF), Tab 2 at 2, Tab 15, Initial
Decision (ID) at 16-17. The agency was thus deprived of fair notice that the
interview would be at issue. The administrative judge’s contradiction of his
jurisdictional finding did not, however, prejudice the agency, because we agree
with the administrative judge that the appellant did not show that his OPR
interview was a contributing factor in his September 2012 Seattle transfer—the
only personnel action which the appellant challenges on review postdating that
interview.3 ID at 24-25; PFR File, Tab 3 at 5, 18, Tab 9 at 4.
2 In arguing that the appellant’s 2009 OPR interview could not have included protected
disclosures because it was made as part of his normal job duties, the agency relies, as
did the administrative judge in initially finding disclosures made during the interview
not protected, on the Federal Circuit decision in Fields v. Department of Justice ,
452 F.3d 1297 (Fed. Cir. 2006). PFR File, Tab 6 at 17-19; Satchell v. Department of
Justice, MSPB Docket No. SF-1221-22-0128-W-1, Initial Appeal File , Tab 25 at 10-11.
In Fields, 452 F.3d at 1305, the Federal Circuit relied on its earlier decision in Huffman
v. Office of Personnel Management , 263 F.3d 1341, 1351-54 (Fed. Cir. 2001), which
held that certain disclosures made as part of an employee’s normal duties were not
protected under the Whistleblower Protection Act (WPA). But section 101 of the
WPEA superseded Huffman by clarifying, in relevant part, that disclosures made during
the normal course of an employee’s duties were not excluded from 5 U.S.C. § 2302(b)
(8) coverage if a personnel action was taken in reprisal for the disclosure. Pub. L. 112-
199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (2012) (codified in relevant part, as amended,
at 5 U.S.C. § 2302(f)(2)). In Day v. Department of Homeland Security , 119 M.S.P.R.
589, ¶¶ 10-26 (2013), the Board held that the clarification of the term “disclosure” in
the WPA by section 101 of the WPEA could be applied retroactively, and that
Huffman’s narrow definition of “disclosure” did not have the force of settled law. Thus,
even if the appellant’s OPR interview would not have contained a protected disclosure
under Huffman and Fields, in neglecting to consider the clarifying effect of the WPEA
as described in Day, the administrative judge thus erred in initially concluding that the
OPR interview could not contain a protected disclosure as a matter of law.
3 The administrative judge found that, although it was not clear when the Bern selection
was made, the selection preceded the appellant’s fall 2009 OPR interview, and it was
thus unnecessary to evaluate whether the interview caused the appellant’s non -selection.3
¶3Because, however, the administrative judge did not fully apply the
knowledge/timing test in his analysis of contributing factor regarding the Seattle
transfer, we do so here. ID at 24-25. The Board has found 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. Cooper v. Department of
Veterans Affairs , 2023 MSPB 24, ¶ 20. Each of the appellant’s real or perceived
disclosures preceded his transfer by well over 2 years, which was too large a gap
to satisfy the test. Salinas v. Department of the Army , 94 M.S.P.R. 54, ¶ 10
(2003) (finding personnel actions over 2 years and over 3 years removed from an
appellant’s disclosure too remote to satisfy the knowledge/timing test).
¶4The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, the administrative judge
shall consider other evidence, such as evidence pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against the appellant.
Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). The
administrative judge considered such other evidence in finding that the appellant
still did not establish contributing factor regarding the transfer to Seattle. ID
at 25. The appellant provides no reason to disturb the administrative judge’s
findings.
W-2 AF, Tab 15, Initial Decision at 14 n.9. Although the evidence on which the
administrative judge based this conclusion was meager, id., a September 2009 agency
memorandum shows that the appellant was not among the selecting official’s top three
candidates, indicating that he was likely out of the running before his OPR interview in
October and November 2009. IAF, Tab 13 at 30, Tab 23 at 145. We thus agree that it
was unnecessary to determine whether the appellant’s OPR interview was a contributing
factor in his non-selection for the Bern position. See Sherman v. Department of
Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015) (stating that a disclosure that occurs
after the personnel action at issue cannot be a contributing factor in that personnel
action). 4
¶5Finally, we find that the appellant provides no sufficiently sound reason to
overturn the credibility determinations upon which the administrative judge
concluded that he did not make protected disclosures to the Assistant Special
Agent in Charge (ASAC) around August 2012 . ID at 22; see Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We thus need not
consider whether the appellant’s alleged conversation with the ASAC around
August 2012 was a contributing factor in his Seattle transfer.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil 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.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. 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 | Satchell_JohnSF-1221-22-0128-W-2_Final_Order.pdf | 2024-08-01 | JOHN SATCHELL v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-1221-22-0128-W-2, August 1, 2024 | SF-1221-22-0128-W-2 | NP |
804 | https://www.mspb.gov/decisions/nonprecedential/Jernigan_Joetta_DC-1221-19-0250-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOETTA JERNIGAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-19-0250-W-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Atlanta, Georgia, for the appellant.
Heather A. Pepin and Sheila Burns , Fort Liberty, North Carolina,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
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
find that the appellant nonfrivolously alleged that she engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) and was subjected to a significant change
in duties, responsibilities, or working conditions, we AFFIRM the initial decision.
BACKGROUND
The appellant, a Contracting Officer Representative, filed an IRA appeal in
which she stated that she filed a complaint with the Office of Special Counsel
(OSC) on July 29, 2016, in which she alleged that her former supervisor
significantly changed her duties, and thereby subjected her to a hostile work
environment, in retaliation for her disclosing to the agency’s Office of Inspector
General (OIG) in September 2015 that he misused contractors by attempting to
require them to attend a barbeque and charge the Government for their time, and
that there was asbestos in a building where her former supervisor was trying to
place contractors. Initial Appeal File (IAF), Tab 1 at 7. She described in detail
the contentious relationship she had with her former supervisor, dating back to
2014, id. at 7-12, and stated that it continued until she was assigned to another
supervisor in April 2015, and even after, prompting her to file the OIG complaint,
id. at 12. She also described other disclosures that she claimed she made about2
her former supervisor, although she did not explain to whom she made these
disclosures or when. These included alleged disclosures that her former
supervisor hired personal friends, issued Blackberry phones to certain contractors
without identifying in the contract the associated cost to the Government, and
abused his authority by directing contractors to work outside the scope of their
employment. And she stated that she reported witnessing derogatory comments
made toward women by her former supervisor and other managers. Id. at 13.
Finally, the appellant stated that on September 30, 2017, she was constructively
removed from her position due to the continued harassing and retaliatory acts of
her former supervisor.2 Id. With her appeal, she submitted a copy of OSC’s
October 24, 2018 closure letter, id. at 16, and she requested a hearing, id. at 2.
In her response to the administrative judge’s order on jurisdiction and proof
requirements for IRA appeals, IAF, Tab 3, the appellant repeated her claims,
added that she filed another OSC complaint on February 6, 2019, regarding her
constructive removal, IAF, Tab 4 at 14, 22-27, and asked the Board to join that
matter with this one once OSC issued a final determination regarding her claimed
constructive removal,3 id. at 17; IAF, Tab 9. The appellant did not, however,
submit a copy of her 2016 OSC complaint or any other correspondence from or to
OSC relating to that complaint, although she did resubmit OSC’s closure letter of
October 24, 2018, include a February 6, 2019 letter to OSC, and in accordance
with the administrative judge’s direction, submit an affidavit under penalty of
perjury. IAF, Tab 3 at 7, Tab 4 at 21-37.
2 The appellant retired, effective September 30, 2017, with Voluntary Separation
Incentive Pay of $40,000. IAF, Tab 5 at 19.
3 After issuance of OSC’s closure letter on that complaint, and while the instant appeal
was pending before the administrative judge, the appellant filed a second IRA appeal on
June 17, 2019, and subsequently filed a petition for review of the initial decision.
Jernigan v. Department of the Army , MSPB Docket No. DC-1221-19-0593-W-1. The
Board will issue a separate decision on the appellant’s petition for review in that matter,
and, given our disposition here, any outstanding request to join the two matters is moot.3
In an initial decision based on the written record, the administrative judge
first denied the appellant’s request for joinder of her two appeals. IAF, Tab 13,
Initial Decision (ID) at 3 n.1. The administrative judge then found that the
appellant established by preponderant evidence that she exhausted her claims that
she made to the OIG that: (1) her former supervisor significantly changed her
duties and created a hostile work environment; (2) he misused contractors by
attempting to require them to attend a barbeque while charging their time to the
Government, claims she made internally and to the OIG; and (3) he tried to place
contractors in a building in which asbestos was present, leading to an agency
investigation that substantiated her claims and caused the agency to halt the
movement of contractors into the affected area and to abate the asbestos. ID
at 5-7. The administrative judge dismissed for failure to exhaust the appellant’s
other alleged disclosures and the constructive removal action. ID at 7.
The administrative judge found, however, that the appellant failed to
nonfrivolously allege that she made a protected disclosure. The administrative
judge found that the appellant’s alleged hostile work environment claim was
vague and conclusory, and that her claims regarding the disclosures about the
barbeque and the asbestos lacked specificity. ID at 7-8. The administrative judge
further found that, even if the appellant could establish that her purported
disclosures satisfied the nonfrivolous jurisdictional standard, she still failed to
allege facts to show that these disclosures could have been a contributing factor
in the agency’s decision to take a personnel action, either a significant change in
her duties or a hostile work environment. ID at 8-9. In this regard, the
administrative judge found the record before OSC devoid of any evidence or
allegations of fact to support a finding that the appellant’s former supervisor had
actual or constructive knowledge of the alleged disclosures she made to the OIG
and that there was no evidence to suggest that her former supervisor believed that
the appellant was the source of the investigation into the asbestos situation. ID4
at 9. As such, the administrative judge dismissed the appellant’s appeal for lack
of jurisdiction. ID at 2, 9.
The appellant has filed a petition for review (PFR) File, Tab 1, to which the
agency has responded in opposition, PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant challenges the administrative judge’s finding that
she failed to introduce any evidence that she nonfrivolously alleged that she made
protected disclosures.4 The administrative judge considered the following as the
appellant’s alleged protected disclosures that she exhausted before OSC: that her
former supervisor misused contractors by attempting to require them to attend a
barbeque while charging their time to the Government, and that he jeopardized
the safety of contractors by planning to have them move to and work in a building
that had previously been placed on the demolition list due to its age and asbestos
concerns. The administrative judge dismissed these claims as vague and
conclusory. ID at 7-8.
The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). A nonfrivolous allegation is an
assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s);
see also Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369
4 We note that, in reaching this finding, the administrative judge considered the
appellant’s claim that she was subjected to a hostile work environment but found that it
was vague and conclusory. ID at 7-8. Based on our review, and as set forth below, this
claim is more properly analyzed as an alleged covered personnel action. Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 16 .5
(Fed. Cir. 2020). Although the appellant claims that she made disclosures of a
type that could be protected, she has not alleged to whom she made these
disclosures or when, and therefore, she has not shown error in the administrative
judge’s finding that she failed to nonfrivolously allege that she made a protected
disclosure of whistleblowing under 5 U.S.C. § 2302(b)(8). See Linder v.
Department of Justice , 122 M.S.P.R. 14, ¶ 14 (2014) (stating that, for an
appellant to raise a nonfrivolous allegation of a protected disclosure under
5 U.S.C. § 2302(b)(8), the disclosure must be specific and detailed and not a
vague allegation of wrongdoing).
However, in reviewing the documents the appellant submitted—notably her
statement, acknowledged by OSC, that her September 2015 disclosure to the OIG
led to an investigation that substantiated her claims and caused the agency to halt
the movement of contractors into the worksite and abate the asbestos,5 IAF, Tab 1
at 16, Tab 4 at 29, 34, we find that the appellant only alleged that she made these
disclosures to the OIG in her September 2015 complaint. The administrative
judge did not address the OIG complaint when she found that the appellant failed
to nonfrivolously allege that she made a protected disclosure. We do so now and
modify the initial decision accordingly.
Pursuant to the Whistleblower Protection Enhancement Act of 2012,
disclosing information to an agency’s OIG in accordance with applicable
provisions of law is protected for purposes of filing an IRA appeal. 5 U.S.C.
§ 2302(b)(9)(C). Although the appellant described her complaint as one of
“whistleblower reprisal,” IAF, Tab 34, in fact, the nature of the disclosures to the
OIG is not relevant at the jurisdictional stage. Fisher v. Department of the
Interior, 2023 MSPB 11, ¶ 8. We find, therefore, that the appellant
nonfrivolously alleged that she engaged in protected activity when she filed an
OIG complaint.
5 The appellant did not submit a copy of her OIG complaint.6
We now consider whether the appellant has nonfrivolously alleged that she
was subjected to a covered personnel action, specifically, a significant change in
her duties and responsibilities which created a hostile work environment. In
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 16, the Board
clarified that although the term “hostile work environment” has a particular
meaning in other contexts, allegations of a hostile work environment may
establish a personnel action in an IRA appeal only if they meet the statutory
criteria under 5 U.S.C. § 2302(a)(2)(A), i.e., constitute a significant change in
duties, responsibilities, or working conditions. Thus, although the “significant
change” personnel action should be interpreted broadly to include harassment and
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system, only agency actions that, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii).
Skarada, 2022 MSPB 17, ¶ 16.
Here, the appellant stated that she reported her former supervisor’s
harassing behavior to the OIG, describing in her affidavit several instances in
which he yelled at her during meetings, ostracized her, and otherwise treated her
harshly. IAF, Tab 4 at 31-35. Such claims could constitute a nonfrivolous
allegation of a significant change in duties, responsibilities, or working
conditions. See id.
However, even if the appellant’s claims constitute a nonfrivolous allegation
that she suffered a significant change in her duties, responsibilities, or working
conditions which resulted in a hostile working environment, to establish the
Board’s jurisdiction, she must also nonfrivolously allege that her protected
activity was a contributing factor in the agency’s decision to take a personnel
action. See Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14.
To satisfy this criterion at the jurisdictional stage, an appellant need only raise a7
nonfrivolous allegation that the fact of, or content of,6 the protected disclosure or
activity was one factor that tended to affect the personnel action in any way. Id.
One way to establish this criterion is by 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 had actual or constructive
knowledge 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. See id.,
¶ 15; Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 11 (2012). Here,
the appellant has not alleged that her former supervisor had actual or constructive
knowledge of her OIG complaint. Her allegation that she suffered a change in her
duties which resulted in a hostile working environment stems from events that
occurred in 2014 and early in 2015, IAF, Tab 4 at 31-35, before she filed her OIG
complaint in September 2015, id. 34. Therefore, this does not constitute a
nonfrivolous allegation that her filing of the OIG complaint was a contributing
factor in her being subjected to a significant change in duties and responsibilities
which created a hostile work environment. See Davis v. Department of Defense ,
106 M.S.P.R. 560, ¶ 12 (2007) (stating that, because the complained of personnel
action predated the protected disclosure, there was no way the protected
disclosure could have contributed to the personnel action), aff’d, 278 F. App’x
1009 (Fed. Cir. 2008). Thus, we find that the appellant has not made a
nonfrivolous allegation satisfying the knowledge/timing test.
Because the appellant has failed to make a nonfrivolous allegation that her
OIG complaint was a contributing factor to the personnel action of which she
complained, she has not established the Board’s jurisdiction over her appeal, and
it must be dismissed on that basis. Id., ¶ 14.
6 As noted, however, the content of a disclosure to the OIG is not relevant in this
analysis. Fisher, 2023 MSPB 11, ¶ 8.8
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.9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 on10
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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) or11
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If 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. 12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Jernigan_Joetta_DC-1221-19-0250-W-1_Final_Order.pdf | 2024-08-01 | JOETTA JERNIGAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-19-0250-W-1, August 1, 2024 | DC-1221-19-0250-W-1 | NP |
805 | https://www.mspb.gov/decisions/nonprecedential/Jernigan_Joetta_DC-1221-19-0593-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOETTA JERNIGAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-19-0593-W-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Atlanta, Georgia, for the appellant.
Heather A. Pepin and Sheila Burns , Fort Liberty, North Carolina,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
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 and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
On review, the appellant argues that the agency took actions that made her
working conditions so intolerable that she was coerced into retirement3 and that
the administrative judge abused her discretion when she granted the agency’s
motion to stay discovery and disallowed her from engaging in discovery. The
administrative judge properly dismissed the IRA appeal for lack of jurisdiction
because the appellant failed to nonfrivolously allege that she was subjected to a
personnel action under 5 U.S.C. § 2302(a)(2)(A). See Jay v. Department of the
Navy, 90 M.S.P.R. 635, ¶ 12 (2001) (observing that retirements are generally
presumed to be voluntary and do not constitute personnel actions under 5 U.S.C.
2 The appellant alleges on petition for review that the administrative judge erred in
denying her request to join this matter with her other IRA appeal, Jernigan v.
Department of the Army , MSPB Docket No. DC-1221-19-0250-W-1, which was pending
at the time, Petition for Review File, Tab 1; however, the record before the
administrative judge in this matter contains no such request. In any event, the issue of
joinder is now moot given our disposition here and because the Board has since issued a
final decision in the other matter, Jernigan v. Department of the Army , MSPB Docket
No. DC-1221-19-0250-W-1, Final Order (Aug. 1, 2024).
3 As explained in the initial decision, the appellant applied for immediate retirement on
June 22, 2017, after the agency offered voluntary early retirement and a voluntary
separation incentive pay to its workforce. The appellant did not separate from the
agency until September 30, 2017.2
§ 2302(a)(2)(A)), aff’d, 51 F. App’x 4 (Fed. Cir. 2002). While the agency moved
to stay discovery in this appeal, the administrative judge did not rule on the
motion, and at no point did the appellant file a motion to compel the agency to
respond to her discovery requests. Because the administrative judge did not rule
on the agency’s motion to stay discovery and the appellant did not file a motion
to compel, we discern no basis for finding that the administrative judge abused
her discretion. See White v. U.S. Postal Service , 64 M.S.P.R. 261, 267-68 (1994)
(declining to find an administrative judge’s failure to rule on an agency’s motion
for an extension was harmful because the appellant failed to show any adverse
effect on her substantive rights). Moreover, as stated above, the appellant failed
to raise a nonfrivolous allegation of Board jurisdiction; thus, she was not entitled
to engage in discovery in her IRA appeal. See Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994) (stating that an appellant is
entitled to discovery in an IRA appeal only when he sets forth nonfrivolous
jurisdictional allegations).
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
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 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 | Jernigan_Joetta_DC-1221-19-0593-W-1_Final_Order.pdf | 2024-08-01 | JOETTA JERNIGAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-19-0593-W-1, August 1, 2024 | DC-1221-19-0593-W-1 | NP |
806 | https://www.mspb.gov/decisions/nonprecedential/Blizzard_Daniel_W_AT-4324-21-0036-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL WAYNE BLIZZARD,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-4324-21-0036-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Wayne Blizzard , Pensacola, Florida, pro se.
Carol M. Lynch and Daniel J. Watson , Pensacola, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) for lack of jurisdiction. On petition for review, the appellant
argues that the agency retaliated against him for filing complaints 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).
whistleblowing activity.2 Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 If the appellant is interested in pursuing these claims, he may file an individual right
of action (IRA) appeal. The Board has jurisdiction over an IRA appeal if the appellant
exhausts his administrative remedies before the Office of Special Counsel and makes
nonfrivolous allegations that (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity as 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).
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Blizzard_Daniel_W_AT-4324-21-0036-I-1_Final_Order.pdf | 2024-08-01 | DANIEL WAYNE BLIZZARD v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-4324-21-0036-I-1, August 1, 2024 | AT-4324-21-0036-I-1 | NP |
807 | https://www.mspb.gov/decisions/nonprecedential/Anderson_Davon_J_DE-0752-22-0255-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVON J. ANDERSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-22-0255-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin M. Davenport , Blair, Oklahoma, for the appellant.
Robert J. Harrison , Hot Springs, Arkansas, for the appellant.
Rebecca M. Randles , Esquire, Kansas City, Missouri, for the appellant.
Starla Larson-Pfeifer , Sioux Falls, South Dakota, for the agency.
Kathleen Hunter , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her removal under 5 U.S.C. chapter 75 based on inappropriate conduct.
On petition for review, the appellant argues that the administrative judge
improperly sustained the charge and did not consider all relevant facts in her
claims of harmful procedural error. Petition for Review (PFR) File, Tab 1
at 10-18. She states that she has a recording of a telephone conversation with her
supervisor that undercuts the supervisor’s position regarding her performance, but
she did not submit the recording into the record before the administrative judge
because she received internal agency advice indicating that such a recording
violates the law. Id. at 9. She now seeks admission of this recording into the
Board’s record. Id. at 9-10. 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 request to admit a recording into the
record.2 In its response to the petition for review, the agency states that the
2 The appellant does not appear to include any such recording or a transcript of the
recording with her petition for review.2
appellant—who was represented before the administrative judge—never presented
such a recording or turned it over in discovery despite a specific request for
“audio recordings.” PFR File, Tab 2 at 10-12. Under 5 C.F.R. § 1201.115, the
Board generally will not consider evidence submitted for the first time with a
petition for review absent a showing that it was unavailable before the record was
closed before the administrative judge despite the party’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant
has not made such a showing; to the contrary, she admits that she had this
recording in her possession during the pendency of the appeal, but she did not
disclose its existence to the agency during discovery or at any time to the
administrative judge. Moreover, the appellant has not explained how the
supervisor’s alleged comments about her performance are relevant in this removal
action based on misconduct. Therefore, we deny the request.
¶3In her arguments regarding the administrative judge’s decision to sustain
the charge and her credibility determinations against her, the appellant asserts that
the administrative judge did not consider that she was an “exemplary” employee
and had “Superior” and “Outstanding” performance appraisals in her previous
agency positions. PFR File, Tab 1 at 11. The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002). The appellant has not presented such sufficiently sound reasons.
¶4Even if we alternatively consider this argument related to the penalty, a
different outcome is not warranted. The record reflects that the appellant
received “Outstanding” overall performance appraisals for fiscal years 2019 and
2020. Initial Appeal File, Tab 27 at 34-38, 44-48. We have considered this
evidence, but we agree with the administrative judge that removal is a reasonable
penalty for the serious, repeated, and intentional sustained misconduct. See, e.g.,3
Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (1996) (stating that, when all
of the agency’s charges are sustained, but some of the underlying specifications
are not sustained, the agency’s penalty determination is entitled to deference and
only should be reviewed to determine whether it is within the parameters of
reasonableness).
¶5We have considered the appellant’s remaining arguments on review, but for
the reasons described in the initial decision, none warrant a different outcome.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.
3 Because we are issuing a final decision on the merits of this appeal, we need not
resolve the issue of the timeliness of the appellant’s petition for review.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Anderson_Davon_J_DE-0752-22-0255-I-1_Final_Order.pdf | 2024-08-01 | DAVON J. ANDERSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-22-0255-I-1, August 1, 2024 | DE-0752-22-0255-I-1 | NP |
808 | https://www.mspb.gov/decisions/nonprecedential/Shaw_Byron_K_SF-0752-20-0498-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BYRON K. SHAW,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-20-0498-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Byron K. Shaw , San Jose, California, pro se.
Anna Jang , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant was employed by the agency’s Veterans Health
Administration (VHA) as an Advanced Medical Support Assistant in the
competitive service until February 2020. Initial Appeal File (IAF), Tab 1 at 5, 7.
He received an excepted-service appointment to the position of Nurse, effective
March 1, 2020, pursuant to the VHA authority set forth in 38 U.S.C. § 7401(1).
IAF, Tab 1 at 5, 7, Tab 8 at 7. The agency terminated his employment effective
May 1, 2020, for failure to maintain a current, unrestricted Registered Nurse (RN)
license. IAF, Tab 1 at 12.
The appellant appealed the termination to the Board and requested a
hearing. IAF, Tab 1. In an acknowledgment order, the administrative judge
informed the appellant that the Board may lack jurisdiction over his termination
because the appellant alleged that the VHA appointed him as a Nurse under
38 U.S.C. § 7401(1), and ordered him to file evidence and argument
nonfrivolously alleging that his appeal was within the Board’s jurisdiction. IAF,
Tab 2. In response, the appellant asserted that the Board’s jurisdiction to “hear2
this case regarding a Title 38 employee is based on the evidence provided that the
[Department of Veterans Affairs (VA)] knowingly and willingly appointed [him]
from a competitive service (GS-6 position) to a Title 38 excepted appointment
knowing [he] did not meet the criteria according to VA Handbook.” IAF, Tab 6
at 4. The agency replied that the Board lacks jurisdiction because the appellant
was appointed under 38 U.S.C. § 7401(1). IAF, Tab 8 at 4-6.
In an initial decision based on the written record,2 the administrative judge
found that the appellant was not entitled to appeal his termination to the Board
because his appointment was pursuant to the authority under 38 U.S.C. § 7401(1).
IAF, Tab 12, Initial Decision (ID) at 4. The administrative judge further found
that the appellant could not rely on the appeal rights he held in his prior position
in the competitive service. ID at 4-6. The appellant has filed a petition for
review of the initial decision. Petition for Review (PFR) File, Tab 1. The agency
has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant reasserts that the agency promoted him to the
Nurse position, for which he was not qualified, in order to eliminate his appeal
rights and then terminate him. PFR File, Tab 1 at 4, 6-8. 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 individual who meets the definition of “employee” at
5 U.S.C. § 7511(a)(1) generally has the right to challenge his removal from the
Federal service by filing an appeal with the Board under chapter 75. Maibaum v.
Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 9 (2011); see 5 U.S.C.
§§ 7512(1), 7513(d). However, as provided in 5 U.S.C. § 7511(b)(10), an
individual does not have the right to appeal an adverse action under chapter 75 if
he “holds a position within the [VHA] which has been excluded from the
2 The appellant withdrew his request for a hearing and elected to receive a decision on
the written record. IAF, Tab 7 at 4.3
competitive service by or under a provision of title 38, unless such employee was
appointed to such position under section 7401(3) of such title.” Pichon v.
Department of Veterans Affairs , 67 M.S.P.R. 325, 326-27 (1995). Here, it is
undisputed that the appellant was appointed to his position as a Nurse under
38 U.S.C. § 7401(1). The statutory exception for section 7401(3) appointments is
therefore inapplicable to the appellant. Thus, the administrative judge properly
found that as a 38 U.S.C. § 7401(1) appointee, the appellant is not entitled to
appeal his termination to the Board under chapter 75. ID at 4. The appellant
does not dispute this finding on review, and we discern no basis to disturb it.3
On review, the appellant argues that he had completed his probation in his
prior position. PFR File, Tab 1 at 7. The administrative judge properly
determined that the appellant’s prior status as a tenured employee did not transfer
to his new appointment. ID at 4-6. Only an individual who meets the definition
of an employee under 5 U.S.C. § 7511(a)(1) may appeal an involuntary separation
to the Board. Burnett v. Department of Housing & Urban Development ,
114 M.S.P.R. 1, ¶ 6 (2010). As indicated above, the appellant was excluded from
this definition by statute. 5 U.S.C. § 7511(b)(10). Even an agency’s failure to
inform an appellant he did not retain his appeal rights when he voluntarily
transferred cannot convey such rights to him. Williams v. Merit Systems
3 The administrative judge indicated that the appellant had the burden of nonfrivolously
alleging a basis for Board jurisdiction over his appeal. ID at 2. Because the appellant
waived his right to a hearing, the issue is not whether he raised a nonfrivolous
allegation of jurisdiction entitling him to a jurisdictional hearing, but whether he
established jurisdiction by a preponderance of the evidence based upon the written
record. IAF, Tab 7; see Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605,
¶¶ 9-10 (2009 (explaining an appellant’s jurisdictional burden in the context of an
alleged involuntary resignation appeal); 5 C.F.R. § 1201.56(b)(2)(i)(A) (setting forth an
appellant’s burden to prove jurisdiction by preponderant evidence). Nonetheless, any
error by the administrative judge as to the appellant’s burden is harmless. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). Having not met the lesser burden of making nonfrivolous
allegations of jurisdiction, the appellant necessarily has not met the higher preponderant
evidence burden. See 5 C.F.R. § 1201.4(q), (s) (defining these burdens).4
Protection Board , 892 F.3d 1156, 1163 (Fed. Cir. 2018). Therefore, the
appellant’s status in his prior appointment provides no basis to disturb the
administrative judge’s finding.
The appellant’s remaining arguments provide no basis to grant review. His
arguments regarding the merits of his termination are immaterial to the
jurisdictional issue before us. Rivera v. Department of Homeland Security ,
116 M.S.P.R. 429, ¶ 13 (2011). He also argues that by effectively eliminating his
chapter 75 rights and then allegedly terminating him for his social media post
containing patient information, the agency abused its authority in violation of
5 U.S.C. § 2302(b)(8), discriminated against him based on non-merit factors in
violation of 5 U.S.C. § 2302(b)(10), and violated his free speech rights. PFR
File, Tab 1 at 5-10.4 Finally, he alleges that the agency has not processed his
internal appeal of his termination. Id. at 10.
The administrative judge properly determined that, because the Board lacks
jurisdiction over the appellant’s termination, it cannot consider his claims of
prohibited personnel practices. ID at 6-7; 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)
4 As to the appellant’s § 2302(b)(8) claim, he has not alleged that he made a protected
disclosure of agency wrongdoing, engaged in a protected activity, or filed a complaint
with the Office of Special Counsel (OSC). IAF, Tab 1 at 4; PFR File, Tab 1 at 9-10.
The Board has jurisdiction over an individual right of action (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). Because he specifically references the Whistleblower Protection Act of
1989 on review, the appellant may wish to file an IRA appeal. PFR File, Tab 1 at 11.
We make no findings here as to the timeliness of such an appeal or whether the Board
would have jurisdiction.5
are not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73
(D.C. Cir. 1982). The appellant’s claims, raised for the first time on review, that
the agency violated his constitutional rights and failed to follow its own
procedures also fail to state a basis for jurisdiction absent an otherwise appealable
action. IAF, Tab 1 at 5, Tab 10 at 4-8; 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 issue of Board jurisdiction, a matter that
may be raised at any time during the Board proceeding); Penne, 118 M.S.P.R.
355, ¶ 15; Moore v. Department of State , 15 M.S.P.R. 488, 489-90 (1983) (stating
that a violation of constitutional rights standing alone will not confer jurisdiction
on the Board in the absence of an otherwise appealable action), aff’d, 765 F.2d
159 (Fed. Cir. 1985) (Table).
Finally, the documents the appellant provides for the first time on review,
specifically, emails he exchanged with a manager regarding his social media post,
are immaterial to the issue of whether the Board has jurisdiction over this appeal.
Thus, they 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). PFR File, Tab 1 at 12-13.
Accordingly, we affirm the initial decision that dismissed this termination appeal
for lack of jurisdiction.
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
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at7
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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,8
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 115-195,9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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 | Shaw_Byron_K_SF-0752-20-0498-I-1_Final_Order.pdf | 2024-08-01 | BYRON K. SHAW v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-20-0498-I-1, August 1, 2024 | SF-0752-20-0498-I-1 | NP |
809 | https://www.mspb.gov/decisions/nonprecedential/Bevel_Ronald_T_AT-0831-20-0574-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD T. BEVEL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
RHONDA BEVEL,
Intervenor.DOCKET NUMBER
AT-0831-20-0574-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald T. Bevel , Madison, Alabama, pro se.
Michael Shipley , Washington, D.C., for the agency.
Eric F. Adams , Esquire, Huntsville, Alabama, for the intervenor.
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 final decision of the Office of Personnel Management that awarded
50% of the appellant’s Civil Service Retirement System gross monthly annuity to
his former spouse, the intervenor in this appeal. On petition for review, the
appellant argues that the administrative judge erred in finding that the Order met
the requirements for processing under 5 C.F.R. part 838. 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
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 115-195,5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bevel_Ronald_T_AT-0831-20-0574-I-1_Final_Order.pdf | 2024-08-01 | RONALD T. BEVEL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-20-0574-I-1, August 1, 2024 | AT-0831-20-0574-I-1 | NP |
810 | https://www.mspb.gov/decisions/nonprecedential/Williams_AmberDA-0831-23-0052-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMBER WILLIAMS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0831-23-0052-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amber Williams , Lubbock, Texas, 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 of the Office of Personnel Management (OPM)
denying the appellant’s survivor annuity. On petition for review, the appellant
argues that the administrative judge failed to consider that she had asthma prior 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).
turning 18 years old, and that OPM misinformed her and her father about her
eligibility for survivor annuity benefits and failed to mail annual notices
regarding the election of a beneficiary. Petition for Review (PFR) File, Tab 1.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
2 The appellant submits with her petition for review a statement from her orthopedic
surgeon regarding her corticosteroid use and its relationship to her developing avascular
necrosis, various articles and obituaries showing that her childhood physicians are
either retired or have passed away, and a document from her health insurance company
stating that it no longer has records older than 10 years old. PFR File, Tab 1 at 6-14.
The Board generally will not consider evidence submitted for the first time with a
petition for review absent a showing that it was unavailable before the record closed
before the administrative judge despite the party’s due diligence. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980 ). Here, the record below closed on
April 3, 2023. Initial Appeal File, Tab 18 at 3. Although the appellant may not have
obtained this evidence until after the record closed, the Board’s regulations provide
that, to constitute new evidence, the information contained in the documents, not just
the documents themselves, must have been unavailable despite due diligence when the
record closed. 5 C.F.R. § 1201.115(d). The appellant has not shown that the
information contained in the submitted documents was unavailable prior to the close of
record. Indeed, the physician whose note she seeks to submit on review has treated her
since 2009, and the note does not include any information that did not exist prior to the
close of the record. PFR File, Tab 1 at 8. Similarly, the documentation showing that
some of the appellant’s physicians have passed away was available as early as 2017,
and the evidence showing that her insurance company does not maintain medical
records for longer than 10 years could have been obtained at any time, not just after the
close of record below. Accordingly, none of the documents submitted on review are2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
new. Further, the appellant has not explained how they are of sufficient weight to
warrant an outcome different than that of the initial decision. Thus, none of these
documents provides a basis to grant the petition for review. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980 ) (stating that the Board generally will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Williams_AmberDA-0831-23-0052-I-1_Final_Order.pdf | 2024-08-01 | AMBER WILLIAMS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-23-0052-I-1, August 1, 2024 | DA-0831-23-0052-I-1 | NP |
811 | https://www.mspb.gov/decisions/nonprecedential/Preston_Bryant_D_SF-0752-21-0063-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYANT D. PRESTON,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-21-0063-I-1
DATE: August 1, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bryant D. Preston , Inglewood, California, pro se.
Matthew C. Miller , Esquire, and Tina R. Saladino , Esquire, Baltimore,
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
dismissed his involuntary resignation appeal for lack of jurisdiction. On review,
the appellant repeats his arguments about harassment and unfair treatment by 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).
Document #: 1852842 v 1
supervisor.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).3
2 The appellant also asserts that “[t]here was evidence that was submitted to the Union
through email that was requested that verifies [his] case is reviewable.” Petition for
Review (PFR) File, Tab 1 at 4. The appellant did not file a motion for leave to submit
this evidence on review, nor does he provide any information regarding the specific
nature of the evidence, or why he was unable to submit it with his response to the
jurisdiction order. Id.; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980)
(stating that, under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence). To the
extent that the appellant asserts he was unable to obtain these materials through the
discovery process, the appellant did not file a motion to compel while the matter was
pending in front of the administrative judge pursuant to 5 C.F.R. § 1201.73.
3 Because the appellant raised a claim of discrimination in this constructive adverse
action appeal, and the Board has now issued a Final Order dismissing the appeal for
lack of jurisdiction, the agency is now required, under 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).2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Preston_Bryant_D_SF-0752-21-0063-I-1_Final_Order.pdf | 2024-08-01 | BRYANT D. PRESTON v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-21-0063-I-1, August 1, 2024 | SF-0752-21-0063-I-1 | NP |
812 | https://www.mspb.gov/decisions/nonprecedential/Turner_Joel__A_CH-0752-20-0180-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOEL A. TURNER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-20-0180-I-1
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kurt P. Cummiskey , Esquire, St. Louis, Missouri, for the appellant.
Deborah L. Lisy , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged 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;
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 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 basis for dismissing the appeal is the appellant’s failure to
nonfrivolously allege that his working conditions were made so difficult that a
reasonable person in his position would have felt compelled to absent himself
from the workplace, or that the agency denied him reasonable accommodation or
delayed his return to work, we AFFIRM the initial decision.
BACKGROUND
The appellant is a preference eligible veteran who has been in his current
position with the agency since 2012. Initial Appeal File (IAF), Tab 12 at 17-19,
Tab 15 at 1. On October 4, 2019, the appellant and his acting supervisor had a
verbal altercation. IAF, Tab 10 at 47. A manager held a meeting between the
two employees and others on October 17, 2019, during which the appellant denied
feeling physically threatened by his acting supervisor, but stated he was “afraid of
losing [his] job.” Id. at 47-48. During that meeting, the appellant and his acting
supervisor indicated they could continue to work together. Id. at 47.
According to the appellant, on October 18, 2019, his acting supervisor
“walked pas[t] him . . . shaking his radio and laughing at him.” IAF, Tab 1 at 24.
He alleged that he suffered a reaction of acute anxiety and severe stress on2
October 25, 2019, due to “management . . . ignoring concerns” about his acting
supervisor’s ongoing harassment and physical intimidation of him. IAF, Tab 1
at 29, Tab 7 at 6.
He further alleged that he informed his acting manager that he would be
unable to continue working. IAF, Tab 7 at 6. According to the appellant, that
manager promised to provide the appellant with an Office of Workers’
Compensation Programs (OWCP) Form CA-16 after he called her back with his
medical provider’s name. Id. Form CA-16, which can only be obtained through
the employing agency, guarantees payment for medical examination and treatment
an employee requires because of a work-related traumatic injury or an
occupational disease or illness. See 20 C.F.R. § 10.300(a);
https://www.dol.gov/owcp/dfec/fec-faq.htm (last visited July 31, 2024); see also
5 C.F.R. § 1201.64 (stating that the Board may take official notice of matters that
can be verified). The appellant stopped attending work that day and filed OWCP
Form CA-1, Notice of Traumatic Injury and Claim for Continuation of
Pay/Compensation. IAF, Tab 1 at 29-30, Tab 7 at 6. On the Form CA-1, he
indicated that he suffered an ongoing injury due to management “ignoring
concerns of employee losing job.” IAF, Tab 1 at 29. From then on, until his
eventual return to work, he was granted leave without pay (LWOP) in lieu of sick
leave. IAF, Tab 9 at 58-61, Tab 10 at 29-31.
According to the appellant, the agency effectively refused to provide him
with a Form CA-16, despite his manager’s promise to him and a December 2019
grievance settlement in which the agency agreed to provide the form. IAF, Tab 1
at 17, 19, Tab 7 at 6. Also according to the appellant, after he told his health
providers that he needed medical care for an injury incurred at work, they
declined to treat him. IAF, Tab 7 at 6.
The appellant filed this appeal of his alleged constructive suspension and
indicated that he was requesting a hearing. IAF, Tab 1 at 5-6. He returned to
work on February 5, 2020. IAF, Tab 9 at 53. 3
In her initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction without holding the requested hearing. IAF, Tab 16, Initial
Decision (ID) at 1-2. She found that the appellant failed to nonfrivolously allege
that his only meaningful choice was to be absent or that his absence was caused
by the agency’s improper actions. ID at 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 petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Involuntary leaves of absence may be appealable under chapter 75. Savage
v. Department of the Army , 122 M.S.P.R. 612, ¶ 19 (2015), overruled in part on
other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31.
Although various fact patterns may give rise to an appealable constructive
suspension, all constructive suspension claims have two things in common: (1)
the employee lacked a meaningful choice in the matter; and (2) it was the
agency’s wrongful actions that deprived the employee of that choice. Id. In
particular, to establish jurisdiction over a constructive suspension on the basis of
intolerable working conditions, an appellant must show that a reasonable person
would have felt compelled to absent himself under the conditions and that the
agency was culpable for these conditions. Id., ¶ 20. In a constructive adverse
action appeal such as this, if an appellant makes a nonfrivolous allegation of fact
establishing Board jurisdiction, he is entitled to a hearing at which he must prove
jurisdiction by preponderant evidence. Thomas v. Department of the Navy ,
123 M.S.P.R. 628, ¶ 11 (2016).
We modify the initial decision to find that the appellant failed to nonfrivolously
allege that the actions of his acting supervisor would cause a reasonable person to
absent himself.
As to the appellant’s claim that his acting supervisor created intolerable
working conditions that caused him to take LWOP, the administrative judge4
found that the appellant had a meaningful choice whether to work and “[i]t is not
the fault of the agency if a 24 year Postal employee has no available sick leave to
cover his absences.” ID at 6. The appellant disputes that his sick leave balance is
relevant to whether he was constructively suspended. PFR File, Tab 1 at 11. We
agree.
If an agency requires or forces an employee to take leave, his resulting
absence may be a constructive suspension. Thomas, 123 M.S.P.R. 628, ¶ 14. For
example, the Board has found that an appellant nonfrivolously alleged that she
was constructively suspended when an agency required her to either report to a
workplace that violated her medical restrictions or take leave. Id. Here, the
appellant did not allege that his absence resulted from his lack of sick leave.
IAF, Tab 1 at 17, Tab 7 at 6. Nor did he claim that the agency forced him to take
leave in general, or forced him to use unpaid leave as opposed to using paid leave
in particular.2 IAF, Tab 1 at 17, Tab 7 at 6. Therefore, we agree with the
appellant that the administrative judge erred to the extent she considered the
appellant’s sick leave balance in assessing his claim. PFR File, Tab 1 at 11; ID
at 6-7. Nonetheless, because we agree with the administrative judge as to the
outcome of this appeal, her error does not state a basis to reverse the initial
decision. 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 also found that the appellant had a meaningful
choice as to whether to work. ID at 6-7. The appellant alleged below that the
agency forced him to absent himself because of intolerable working conditions
which caused him acute anxiety and severe stress. IAF, Tab 7 at 6. On review,
he continues to assert he was medically unable to work during the period at issue,
PFR File, Tab 1 at 7-8.
2 The appellant did not have any available sick leave. IAF, Tab 9 at 53, Tab 10 at 29.
However, the record suggests that he had available annual leave. IAF, Tab 9 at 53,
Tab 10 at 29. 5
To the extent that the administrative judge found that the appellant failed to
nonfrivolously allege that he had no choice but to be absent from work, we
disagree. ID at 6. The record below contains a statement from his health care
provider that he was unable to work beginning on October 25, 2019, due to his
anxiety and stress. IAF, Tab 9 at 55. This statement is sufficient evidence to
meet the appellant’s burden to nonfrivolously allege that he had no choice but to
be absent. See Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468,
¶ 10 (2015) (finding that an appellant lacked a meaningful choice as to whether to
be absent during an alleged constructive suspension when his psychological
condition precluded him from reporting to work), aff’d, 833 F.3d 1342 (Fed. Cir.
2016).
Nonetheless, we find that the appellant failed to meet his jurisdictional
burden. To establish jurisdiction over a constructive suspension on the basis of
intolerable working conditions, an appellant must show that a reasonable person
would have felt compelled to absent himself under the conditions and that the
agency was culpable for these conditions. Savage, 122 M.S.P.R. 612, ¶ 20. We
find that the appellant failed to nonfrivolously allege that the agency created
intolerable working conditions that would have compelled a reasonable person in
his position to take leave from work.
The appellant asserted in a declaration made under penalty of perjury that
his acting supervisor had been harassing him “for some time” when, “earlier in
October of 2019,” the supervisor invited him to fight on the workroom floor.
IAF, Tab 7 at 7. Vague, conclusory, or otherwise unsupported allegations do not
satisfy the Board’s nonfrivolous pleading standard. See Green v. Department of
Veterans Affairs , 112 M.S.P.R. 59, ¶¶ 10-11 (2009) (finding that an appellant’s
allegations that coworkers “spread[ ] rumors” about him because they were
“trying to get back at [him] for some reason” were vague and general, thus falling
short of nonfrivolous allegations of intolerable working conditions that could
establish jurisdiction over his allegedly forced resignation); Dodson v. U.S.6
Postal Service, 67 M.S.P.R. 84, 87 (1995) (finding that the appellant failed to set
forth specific assertion of fact, which, if proven, would support her claim that her
retirement resulted from “duress” and “misinformation”); Collins v. Defense
Logistics Agency , 55 M.S.P.R. 185, 189-90 (1992) (finding, in the context of an
appeal in which the appellant argued that she was forced to resign because of
discrimination and retaliation, that her failure to make allegations specifying the
particular acts of harassment, discrimination, or retaliation directed toward her
warranted dismissing the appeal for lack of jurisdiction without affording her a
jurisdictional hearing), modified on other grounds by Ferdon v. U.S. Postal
Service, 60 M.S.P.R. 325, 329-30 (1994); 5 C.F.R. § 1201.4(s)(1) (providing that
a nonfrivolous allegation is one that is more than conclusory). Accordingly, the
appellant’s bare allegation that he was harassed by his supervisor “for some time”
is insufficient to indicate that the agency subjected him to intolerable working
conditions.
The appellant’s declaration also fails to discuss with any specificity his
acting supervisor’s alleged invitation to fight, IAF, Tab 7 at 6, though there are
some details about that incident in the record. In particular, the record contains
the notes of the appellant’s manager from her discussion with him on October 17,
2019, and a complaint the appellant filed with the agency’s Office of the
Inspector General (OIG) on October 31, 2019, IAF, Tab 10 at 25-26, 47-48. The
appellant stated in his OIG complaint that his acting supervisor gave him
instructions in an “unacceptable” manner, which made the appellant feel that he
had to walk away. Id. at 26, 47. As the appellant walked away, he said that he
was going to go see a manager, at which point the acting supervisor asked the
appellant what he said. Id. The appellant turned around, and his acting
supervisor then said, “Here I am. Here I am. I’m right here.” Id. at 26. At the
time, the acting supervisor allegedly pointed a parcel or mail piece that he was7
holding in the appellant’s face.3 Id. at 47. During the October 17, 2019 meeting
about the incident with his manager, the appellant was asked if he felt unsafe, and
he replied, “No, I just don’t trust him, I am not afraid of him. I’m afraid of losing
my job.” Id. The appellant and his acting supervisor agreed during that meeting
that they would be able to continue working together. Id.
The appellant has not indicated that his prior descriptions of the October 4,
2019 incident are inaccurate or otherwise provided the Board with a separate
account of the incident. Even if proven, these alleged facts would not establish
that a reasonable person in the appellant’s position would have no choice but to
take leave. Difficult or unpleasant working conditions are generally not so
intolerable as to compel a reasonable person to resign. Brown v. U.S. Postal
Service, 115 M.S.P.R. 609, ¶ 15 (2011), aff’d per curiam , 469 F. App’x 852 (Fed.
Cir. 2012); cf. Staats v. U.S. Postal Service , 99 F.3d 1120, 1124 (Fed. Cir. 1996)
(holding that “the doctrine of coercive involuntariness is a narrow one”). The
appellant continued working for 3 weeks after the incident and stated
approximately 1 week before he began absenting himself that he did not feel
unsafe or afraid of the acting supervisor and that he could continue working with
him. IAF, Tab 7 at 47. Accordingly, the October 4, 2019 incident would not
cause a reasonable person in the appellant’s position to feel that he had no choice
but to be absent beginning on October 25, 2019.
On review, the appellant seems to cite to a grievance worksheet completed
by a union steward on his behalf and contained in the record below. PFR File,
Tab 1 at 4; IAF, Tab 1 at 24. In addition to referring to the October 4, 2019
incident, the worksheet indicates that on October 18, 2019, the appellant’s acting
supervisor walked past the appellant while “shaking his radio and laughing at
him.” IAF, Tab 1 at 24. Even if proven, this incident would not cause the
3 The appellant identified the item his acting supervisor was holding as “a long IPP.”
IAF, Tab 10 at 47. IPP is an acronym for an irregular parcel or mail piece. U.S. Postal
Service, Publication 32, Glossary of Postal Terms, List of Acronyms/Abbreviations
(July 2013), https://about.usps.com/publications/pub32/ (last visited July 31, 2024).8
reasonable person to feel compelled to take leave. See Brown, 115 M.S.P.R. 609,
¶ 15.
The appellant further asserted that he was “physically intimidated” by his
supervisor on October 25, 2019, leading him to suffer a reaction of acute anxiety
and severe stress. IAF, Tab 7 at 6. But the appellant fails to describe this event
in any detail. On review, the appellant’s representative indicates that on
October 25, 2019, the supervisor “harassed [the] [a]ppellant further and violated
his personal space.” PFR File, Tab 1 at 4. However, this description is still too
conclusory to support a finding that the appellant was subjected to working
conditions that would cause a reasonable person in his position to be compelled to
take leave. See Collins, 55 M.S.P.R. at 189-90. Even considering all of the
appellant’s assertions as a whole, we find that he has failed to nonfrivolously
allege that he was subjected to working conditions from which a reasonable
person would have felt compelled to absent himself.
In addition to alleging intolerable working conditions, the appellant has
asserted that the agency discriminated against him by failing to accommodate his
disability. IAF, Tab 1 at 17. The administrative judge did not address this claim,
and the appellant does not repeat it on review. An appellant can establish a
constructive suspension claim on the basis that he absented himself because the
agency improperly denied his reasonable accommodation request. See Bean v.
U.S. Postal Service , 120 M.S.P.R. 397, ¶ 14 (2013). Here, however, the appellant
has failed to allege that he requested accommodations that would have allowed
him to continue working. Accordingly, the appellant’s conclusory assertion that
the agency failed to accommodate his disability does not constitute a nonfrivolous
allegation that the agency coerced him into absenting himself. See Hosozawa v.
Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 7 (finding that an appellant
nonfrivolously alleged her resignation was involuntary when it followed the
agency’s denial of her request to telecommute, which her doctor indicated would
have permitted her to continue working); Mengine v. U.S. Postal Service ,9
82 M.S.P.R. 123, ¶¶ 7, 12 (1999) (rejecting the appellant’s argument that his
disability retirement was involuntary on the basis of a failure to accommodate
when he failed to nonfrivolously allege that there was an accommodation
available that would have allowed him to continue his employment).
The appellant failed to nonfrivolously allege that the agency’s delay in providing
the Form CA-16 caused his continued absence.
In addition to asserting that he was coerced into absenting himself, the
appellant argues that the agency’s delay in providing the Form CA-16 forced him
to continue to be absent. PFR File, Tab 1 at 8-11. He raised the same argument
below, and the administrative judge found that the appellant also bore
responsibility for obtaining this form and that the agency’s delay in providing it
did not satisfy his burden of proof. ID at 6; IAF, Tab 7 at 6. We need not reach
the issue of whether the appellant was responsible for obtaining the Form CA-16
because, as discussed below, he failed in any event to nonfrivolously allege that
the agency’s delay in providing it forced him to remain absent. We modify the
initial decision accordingly.
The appellant indicated that the agency’s denial of the Form CA-16
prevented him from receiving medical care and delayed his ability to return to
work. IAF, Tab 7 at 6. However, the only specific allegation he provides along
these lines is that he was “turned away from health care providers when [he] told
them [his] need for medical care was caused by an injury at work.” Id. The
appellant did not explain how the lack of the Form CA-16 prevented him from
obtaining medical treatment. Id. To the extent that he is alleging that a health
care provider or providers declined to treat him without the form, we find that
such an allegation fails to meet the nonfrivolous pleading standard because it is
both conclusory and implausible on its face. See 5 C.F.R. § 1201.4(s). The Form
CA-16 merely guarantees payment by the Federal Government for certain medical
examinations and treatments. https://www.dol.gov/owcp/dfec/fec-faq.htm . We
are unaware of any authority or practice which would require a health care10
provider to possess the form before they could treat an individual for a condition,
regardless of the cause.
To the extent that the appellant implies that he could not afford to treat his
medical condition and needed the Form CA-16 so that the Federal Government
would be obliged to pay for it, he has failed to make such an assertion or provide
any factual allegations in support of it. Further, the appellant ultimately provided
a note to the agency from what appeared to be his treating health care provider,
belying any claim that he was unable to receive treatment. IAF, Tab 9 at 55.
Thus, such a claim similarly fails to satisfy the nonfrivolously pleading standard.
See 5 C.F.R. § 1201.4(s)(1). Accordingly, we find that the appellant failed to
nonfrivolously allege that he needed the Form CA-16 in order to obtain treatment
that would allow him to return to work. We therefore need not reach whether the
agency’s delay in providing the form was wrongful.4
Because the appellant’s allegations fell short of nonfrivolously alleging he
suffered a constructive suspension, we affirm the administrative judge’s
determination that he was not entitled to a hearing, as modified above.5 ID at 1-2,
11.
4 On review, the appellant contends that during the proceedings below the agency raised
arguments and assertions which “besmirch[ed] his good name,” and he takes issue with
the fact that the administrative judge acknowledged them in her initial decision. PFR
File, Tab 1 at 11. To the extent that the appellant is alleging that the administrative
judge was biased, we are not persuaded. An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if the administrative
judge’s comments or actions evidence “a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555
(1994)). The appellant has alleged no such comments or actions.
5 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 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).11
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any13
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Turner_Joel__A_CH-0752-20-0180-I-1__Final_Order.pdf | 2024-07-31 | JOEL A. TURNER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-20-0180-I-1, July 31, 2024 | CH-0752-20-0180-I-1 | NP |
813 | https://www.mspb.gov/decisions/nonprecedential/Ramsey_DouglasDA-0752-22-0401-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS RAMSEY,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DA-0752-22-0401-I-1
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff T. Schrameck , Esquire, Canton, Michigan, for the appellant.
Richard L. Todd , Esquire, Arlington Heights, Illinois, for the agency.
Sarah J. Helbig , 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
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary retirement appeal for lack of jurisdiction. On petition
for review, he argues that the agency responded to allegations that he engaged 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).
misconduct by suspending his access to classified materials and placing him on
administrative leave. Petition for Review File, Tab 3 at 7-9. He further argues
that the agency left him in this status for more than a year before deciding to
place him on indefinite suspension pending resolution of his access to classified
information. Id. According to the appellant, these circumstances were isolating
and distressing, and the indefinite suspension would have placed him in a
precarious financial situation, so he had no choice but to retire. Id. According to
the appellant, these allegations sufficed for the purpose of establishing
jurisdiction over his retirement, or at least a hearing on the matter.2 Id. at 9-11.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
2 We note that the Board considered similar circumstances in Putnam v. Department of
Homeland Security , 121 M.S.P.R. 532 (2014). In that case, the appellant alleged that
she had no choice but to retire after the agency suspended her security clearance and
placed her on indefinite suspension. But the Board found that these claims did not
amount to nonfrivolous allegations of involuntariness and Board jurisdiction. Id., ¶¶ 3,
20-23.2
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 | Ramsey_DouglasDA-0752-22-0401-I-1_Final_Order.pdf | 2024-07-31 | DOUGLAS RAMSEY v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-0752-22-0401-I-1, July 31, 2024 | DA-0752-22-0401-I-1 | NP |
814 | https://www.mspb.gov/decisions/nonprecedential/Placzek_RodneyDE-0752-19-0243-I-4_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODNEY PLACZEK,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DE-0752-19-0243-I-4
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Brandon Roby , Esquire, and Jaime M. Porter , Esquire, Fort Meade,
Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal for absence without leave and conduct unbecoming. On
petition for review, the appellant argues that the administrative judge erred in
sustaining the charges, that the administrative judge erroneously found 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).
removal was not motivated by Equal Employment Opportunity retaliation, and
that the administrative judge erroneously overlooked mitigating factors in
sustaining the penalty. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 We considered the agency’s arguments that the appellant’s petition for review should
be dismissed as a procedural matter, but we found them unavailing. Petition for Review
File, Tab 4 at 5-6.
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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Placzek_RodneyDE-0752-19-0243-I-4_Final_Order.pdf | 2024-07-31 | RODNEY PLACZEK v. DEPARTMENT OF DEFENSE, MSPB Docket No. DE-0752-19-0243-I-4, July 31, 2024 | DE-0752-19-0243-I-4 | NP |
815 | https://www.mspb.gov/decisions/nonprecedential/Shakur_MalikDA-315H-21-0053-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MALIK SHAKUR,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-315H-21-0053-I-1
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Malik Shakur , Oklahoma City, Oklahoma, pro se.
Sean Lanagan , Esquire, and Michele S. McNaughton , Esquire, Tinker Air
Force Base, Oklahoma, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
Because the appellant was serving in a 2-year probationary period and he
had completed less than 2 years of current continuous service when he was
terminated,2 the administrative judge properly found that the appellant failed to
make a nonfrivolous allegation that he qualifies as an “employee” with appeal
rights to the Board under 5 U.S.C. § 7513(b).3 Initial Appeal File (IAF), Tab 13,
2 Although the administrative judge correctly set forth the dates of the appellant’s
appointment and termination and the fact that the appointment was subject to a 2-year
probationary period, he inadvertently stated that the appellant was terminated before he
completed 1 year of service. This minor misstatement provides no basis to disturb the
initial decision. ID at 5; see Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
3 At the time of the appellant’s appointment to his competitive-service position in
January 2019, an individual appointed to a permanent competitive-service position at
the Department of Defense (DOD) was subject to a 2-year probationary period and only
qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) and 10 U.S.C.
§ 1599e (2016) if he was not serving a probationary or trial period under an initial
appointment, or if he had completed 2 years of current continuous service under other
than a temporary appointment limited to 1 year or less. IAF, Tab 11 at 41; see Bryant v.
Department of the Army , 2022 MSPB 1, ¶ 8. In December 2021, while this appeal was
pending on petition for review, Congress repealed 10 U.S.C. § 1599e and the 2-year
probationary period for such DOD appointments. Bryant, 2022 MSPB 1, ¶ 8. However,
this repeal was made effective December 31, 2022, and only applied to individuals2
Initial Decision (ID) at 5. The appellant does not challenge this finding on
review and we discern no reason to disturb it.
For the first time on review, the appellant argues that his termination was
based on partisan political reasons, marital status, and preappointment reasons
and the agency did not follow the procedures of 5 C.F.R. § 315.805. Petition for
Review (PFR) File Tab 1 at 2-3. The Board will generally not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). However, the issue of jurisdiction is thus always before the Board and
may be raised by either party or by the Board sua sponte at any time during a
proceeding. Ney v. Department of Commerce , 115 M.S.P.R. 204, ¶ 7 (2010). For
the reasons stated below, we find that the appellant has not made a nonfrivolous
allegation of Board jurisdiction under 5 C.F.R. § 315.806.
The appellant does not allege facts which, taken as true, would show that
he was treated differently because of his marital status or that go to the essence of
his marital status. Marynowski v. Department of the Navy , 118 M.S.P.R. 321, ¶ 9
(2012). He simply notes that the agency was aware that he was a single parent,
PFR File, Tab 1 at 2, and childcare responsibilities per se are not dependent on an
individual’s marital status and do not go to the essence of marital status.
Green-Brown v. Department of Defense , 118 M.S.P.R. 327, ¶ 7 n.2 (2012).
Regarding his claim of partisan political discrimination, an appellant’s
allegations must consist of more than merely conclusory statements. Bante v.
Merit Systems Protection Board , 966 F.2d 647, 649 (Fed. Cir. 1992). The
appointed on or after that date. 10 U.S.C. § 1599e note; Bryant, 2022 MSPB 1, ¶ 8.
The repeal of 10 U.S.C. § 1599e does not affect the outcome of this appeal. Because
the appellant was appointed in January 2019, before the effective date of the repeal, the
administrative judge properly concluded that the appellant was serving a 2-year
probationary period and lacked the required 2 years of current continuous service at the
time of his termination, and therefore that he was not an “employee” with adverse
action appeal rights under 5 U.S.C. chapter 75. ID at 4-5; see Bryant, 2022 MSPB 1,
¶¶ 8-9.3
appellant’s generic allegations that a supervisor used politically incorrect
language toward him and that racial tension was at an “all time high” on and off
the job in 2020, an election year, PFR File, Tab 1 at 2, are not nonfrivolous
allegations that his termination was based on his affiliation or adherence to a
particular political party.
Finally, the record reflects that the agency terminated the appellant during
his probationary period for post-appointment reasons, specifically, violating a
workplace rule on cell phone use. IAF, Tab 11 at 21. The appellant was not
entitled to the procedural protections under 5 C.F.R. § 315.805 because he did not
make a nonfrivolous allegation that he was terminated based in whole or in part
on preappointment reasons.4
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
4 We have considered the appellant’s other arguments, such as that his unrebutted
affidavit establishes his case and that the agency improperly served a document, but
find that his claims do not demonstrate error in the initial decision. PFR File, Tab 1
at 3-4, Tab 4 at 1. Because the appellant failed to establish Board jurisdiction over his
appeal, the merits of the agency’s termination action are not before us. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016) (stating that, in an appeal
of a probationary termination, the merits of the agency’s decision to terminate the
probationer are not before the Board). Regarding the agency’s service of its response to
the petition for review, the agency served the appellant by first-class mail as indicated
in the certificate of service. PFR File, Tab 3 at 7, Tab 4 at 1.
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.4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.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. 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 | Shakur_MalikDA-315H-21-0053-I-1_Final_Order.pdf | 2024-07-31 | MALIK SHAKUR v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-315H-21-0053-I-1, July 31, 2024 | DA-315H-21-0053-I-1 | NP |
816 | https://www.mspb.gov/decisions/nonprecedential/Granucci_David_W_SF-315H-20-0736-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID W. GRANUCCI,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-315H-20-0736-I-1
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul E. Carreras , Esquire, Roseville, California, for the appellant.
Kristopher Motschenbacher , Jolon, 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 of his termination during a trial period 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).
The appellant bears the burden of proving the Board’s jurisdiction by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A); see LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016). Under 5 C.F.R.
§ 315.806(c), a probationary employee whose termination was based in whole or
in part on conditions arising before his appointment may appeal his termination to
the Board on the grounds that it was not effected in accordance with the
procedural requirements set forth in 5 C.F.R. § 315.805. LeMaster, 123 M.S.P.R.
453, ¶ 7. Those procedural requirements include advance notice of the
termination, an opportunity to respond, and consideration of the response.
5 C.F.R. § 315.805; see LeMaster, 123 M.S.P.R. 453, ¶ 13.
On review, the appellant argues that he was terminated for pre-appointment
reasons and that the agency failed to comply with the requirements of 5 C.F.R.
§ 315.805. Petition for Review (PFR) File, Tab 4 at 6-9. Here, the appellant’s
termination was based on a post-appointment reason—a complaint regarding the
manner in which the appellant carried out his job duties—and, contrary to the
appellant’s assertions, the termination notice made no mention of
pre-appointment reasons. Initial Appeal File (IAF), Tab 4 at 10; PFR File Tab 42
at 10-11. Thus, the appellant was not entitled to the procedures set forth in
5 C.F.R. § 315.805 upon his termination.
The appellant also argues that the agency infringed on his liberty interest.
PFR File, Tab 4 at 9-11. He asserts that being charged with conduct that is
“extremely unprofessional and could be interpreted as harassment” adversely
affects his reputation or ability to obtain future employment. PFR File, Tab 4
at 11; IAF, Tab 4 at 10. He cites to The Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 569-73 (1972), among other cases, for the proposition that a
probationary employee has a liberty interest under the Fourteenth Amendment
that must be protected when a termination adversely affects his reputation or
ability to obtain future employment. PFR File, Tab 4 at 9. However, in Link v.
Department of the Navy , 3 M.S.P.R. 187, 190 (1980), the Board found that a
termination related directly to an employee’s performance of his duties does not
invoke a liberty interest under Roth. Moreover, the Board has no jurisdiction to
review constitutional claims absent an otherwise appealable action, in other
words, a matter within the Board’s jurisdiction. Smith v. Department of Defense ,
106 M.S.P.R. 228, ¶ 13 (2007). Thus, we affirm the initial decision.2
2 The administrative judge noted that he incorrectly provided the appellant, who was
appointed to a term position, with the jurisdictional burdens applicable to a
probationary termination appeal for an employee appointed to a permanent position in
the competitive service in the Department of Defense. IAF, Tab 6, Initial Decision (ID)
at 2 n.1. However, an administrative judge’s failure to provide an appellant with proper
notice can be cured if other pleadings or the initial decision put the appellant on notice
of what he must do to establish jurisdiction, thus affording him the opportunity to meet
his burden on petition for review. Easterling v. U.S. Postal Service , 110 M.S.P.R. 41,
¶ 11 (2008). The deficient notice was cured by the initial decision. ID at 3-4. The
appellant has not made a nonfrivolous allegation of jurisdiction in his pleadings on
review. 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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.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. 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 | Granucci_David_W_SF-315H-20-0736-I-1_Final_Order.pdf | 2024-07-31 | DAVID W. GRANUCCI v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-315H-20-0736-I-1, July 31, 2024 | SF-315H-20-0736-I-1 | NP |
817 | https://www.mspb.gov/decisions/nonprecedential/Willingham_Nathaniel_J_DC-1221-19-0722-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHANIEL J. WILLINGHAM,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-19-0722-W-1
DATE: July 31, 2024
THIS ORDER IS NONPRECEDENTIAL1
Nathaniel J. Willingham , Jurupa Valley, California, pro se.
Henry Karp , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
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,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed with the agency’s Military Sealift Command
as an Equal Employment Opportunity (EEO) Specialist, GS-12. Initial Appeal
File (IAF), Tab 6 at 20. On August 30, 2018, the agency proposed his removal
for job-related issues. Id. at 26-29. Following the appellant’s reply, the deciding
official removed the appellant effective March 31, 2019, based on charges of
improper use of records covered by the Privacy Act, misuse of his position, and
three specifications of a failure to follow proper procedures charge.2 Id. at 20-24.
Thereafter, the appellant filed a complaint with the Office of Special Counsel
(OSC), claiming that his removal was in reprisal for various whistleblowing
disclosures and activities he had made and engaged in between December 2017
and January 2019. IAF, Tab 1 at 20. On July 24, 2019, OSC informed the
appellant that it was terminating its inquiry into his allegations and that he had a
right to seek corrective action from the Board. Id.
The appellant timely filed an IRA appeal with the Board, claiming that his
removal was in reprisal for whistleblowing activity. Id. at 5. Specifically, he
alleged that he made 11 disclosures to his supervisors, which concerned agency
policy related to reasonable accommodation, the processing of EEO complaints,
other alleged incidents relating to potential violations of laws, rules, or
regulations, and alleged abuses of authority. Id. at 17-19. He also claimed that
his removal was in reprisal for a complaint he filed with the Office of Inspector
General (OIG) and EEO complaints he had filed, both on his own behalf and as a
class agent as a part of a class action EEO complaint, for which he provided
evidence and gave testimony. Id. at 5. The administrative judge issued an order
2 The notice of proposed removal included four specifications to the failure to follow
proper procedures charge; however, the deciding official only sustained three of those
specifications. IAF, Tab 6 at 22, 27-28. 2
on jurisdiction, informing the appellant of his jurisdictional burden and stating
that, because it appeared that the appellant exhausted his administrative remedy
with OSC concerning his removal and his alleged protected disclosures and
activities, no further evidence or argument was needed on the issue of OSC
exhaustion. IAF, Tab 3 at 1-3.
Following a response from the appellant to the order on jurisdiction,
IAF, Tab 5, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction, IAF, Tab 8, Initial Decision (ID). Specifically, the
administrative judge considered the appellant’s alleged disclosures and concluded
that he failed to nonfrivolously allege that they were protected under 5 U.S.C.
§ 2302(b)(8). ID at 5-8. He also found that the appellant’s alleged protected
activity of participating in a class action EEO complaint as a class agent did not
constitute protected activity under section 2302(b)(9)(B) as a matter of law,
and that, although the appellant’s OIG complaint constituted protected activity
under section 2302(b)(9)(C), the appellant failed to nonfrivolously allege that
such activity contributed to his removal. ID at 8-12. Therefore, the
administrative judge found that the appellant failed to nonfrivolously allege
Board jurisdiction over his IRA appeal, and he dismissed the appeal. ID at 12.
The appellant has filed a petition for review of the initial decision, arguing
that it was “unfair [for the administrative judge] to judge [his] allegations as
frivolous” and that the administrative judge improperly assessed the merits of the
appeal at the jurisdictional stage. Petition for Review (PFR) File, Tab 1 at 3-4.
He also generally challenges the administrative judge’s analysis of some of his
claims regarding EEO processing issues and reasserts that his role as a class agent
for a class action EEO complaint constitutes protected activity under
section 2302(b)(9)(B). Id. at 5. Further, he challenges the administrative judge’s
conclusion that his OIG complaint was not a contributing factor to his removal.
Id. at 4. He also submits a declaration from a coworker regarding his
professional relationship with the appellant and his observations of the3
appellant’s duties and the alleged facts surrounding his disclosures. Id. at 7-10.
The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 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).
As an initial matter, we note that the administrative judge did not discuss
the question of exhaustion in the initial decision. ID at 3-12. As mentioned
above, however, he concluded in a prior order that the appellant showed that he
exhausted his administrative remedy with OSC with respect to all of his claims.
IAF, Tab 3 at 2. Neither party has challenged this conclusion, and we believe the
record otherwise supports it. OSC’s close-out letter summarizes the allegations
brought to it by the appellant, which include, with varying degrees of specificity,
all of the allegations that the appellant brought to the Board. IAF, Tab 1 at 20.
Accordingly, although the administrative judge did not discuss exhaustion in the
initial decision, we agree with his conclusion that the appellant’s claims were all
exhausted with OSC, and we discern no reason to disturb it. See, e.g., Crosby
v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions).4
The appellant nonfrivolously alleged that he made four protected disclosures
under 5 U.S.C. § 2302(b)(8).
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). 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 law, rule, 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 noted above, the administrative judge found that the appellant failed to
nonfrivolously allege that he made a protected disclosure. ID at 5.
Specifically, he found that the appellant’s alleged disclosures regarding the
agency’s processing of EEO complaints and its interpretation of EEO policy and
law concerned EEO matters covered under 5 U.S.C. § 2302(b)(1) and (b)(9), and
that such matters are excluded from whistleblowing protection coverage under
5 U.S.C. § 2302(b)(8). ID at 5-7. He further found that other disclosures were
allegations of wrongdoing too vague to rise to the level of protected disclosures.
ID at 7-8. Although we agree with some of the administrative judge’s
conclusions, we believe, as explained below, that 4 of the appellant’s 11 alleged
disclosures are protected under section 2302(b)(8).
Of the appellant’s three disclosures regarding reasonable
accommodations, he nonfrivolously alleged that one of them is
protected under 5 U.S.C. § 2302(b)(8).
Below, the appellant alleged that he disclosed to his first- and second-level
supervisors that the agency was not offering full-time telework as a reasonable
accommodation, that telework as a reasonable accommodation was limited to5
2 days per week, and that the agency was not offering telework of any kind for
people with temporary disabilities in violation of disability law. IAF, Tab 1
at 17. The administrative judge concluded that, because these disclosures
concerned EEO -related issues, and such matters are generally excluded from
whistleblower protection coverage, the appellant failed to nonfrivolously allege
that the disclosures were protected. ID at 5-6 (citing Applewhite v. Equal
Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 13 (2003)). Although
the administrative judge is correct that, generally, allegations asserting EEO
violations under section 2302(b)(1) and (b)(9) are excluded from coverage under
section 2302(b)(8), see Applewhite, 94 M.S.P.R. 300, ¶ 13; see also Edwards v.
Department of Labor, 2022 MSPB 9, ¶¶ 13, 22-23, aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023), the appellant was not asserting that
the agency violated these provisions as they related to his own rights, IAF, Tab 1
at 17. Rather, it appears that he made these allegations in his official capacity as
an EEO Specialist, claiming that the agency was acting improperly with respect to
its EEO function. Id. Therefore, his allegations are not of the kind generally
contemplated by section 2302(b)(1) and (b)(9). As such, we consider them
further below.
The appellant’s allegations that the agency was not offering full-time
telework as a reasonable accommodation and that telework as a reasonable
accommodation was limited to 2 days per week appear to evidence a policy
dispute with agency officials regarding what degree of telework is required as a
reasonable accommodation. The Board has stated 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).” See Webb v. Department of the
Interior, 122 M.S.P.R. 248, ¶ 8 (2015); see also 5 U.S.C. § 2302(a)(2)(D).
Here, the appellant has not otherwise alleged that failing to offer full-time
telework or limiting telework to 2 days per week as a reasonable accommodation6
concerns any of the alleged categories of wrongdoing listed under section 2302(b)
(8)(A). IAF, Tab 1 at 17. Thus, although we agree with the administrative judge
that these disclosures are not protected, we emphasize that they are not protected
not because they concern EEO matters, but rather because they concern policy
disputes. See Webb, 122 M.S.P.R. 248, ¶ 8.
However, we find that the appellant nonfrivolously alleged that his
disclosure regarding the agency’s failure to offer telework of any kind to people
with temporary disabilities in violation of disability law is protected because it
alleges a violation of law. IAF, Tab 1 at 17. 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, which the appellant has not
done here; however, the U.S. Court of Appeals for the Federal Circuit 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.” See Langer
v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001).
Here, the appellant has cited an Equal Employment Opportunity
Commission (EEOC) case, which discusses telework as a reasonable
accommodation and provides the EEOC’s articulation of the related law.
IAF, Tab 1 at 17 (citing Jody L. v. Department of the Air Force, EEOC Appeal
No. 0120151351, 2018 WL 619160, at *4-8 (Jan. 17, 2018)).3 This citation,
combined with the appellant’s position as an EEO Specialist and his broader
reference to disability law as it relates to an option of telework as a reasonable
accommodation, warrants the conclusion that the appellant has implicated an
identifiable law, rule, or regulation. IAF, Tab 1 at 17. Thus, we find that the
appellant nonfrivolously alleged that he made a protected disclosure in this
regard.
3 The appellant’s citation to this EEOC case appears to have some typographical errors,
but it is clear he is referencing the case cited above. 7
Of the appellant’s four disclosures regarding the agency’s
processing of EEO complaints, he nonfrivolously alleged that one of
those disclosures is protected under 5 U.S.C. § 2302(b)(8).
The appellant asserted below that he disclosed to his first- and second-level
supervisors that the agency failed to use a tracking system when processing EEO
complaints, that agency human resources professionals exerted improper
influence over the reasonable accommodation process, that the agency violated
the EEOC’s Management Directive (MD) 110, which concerns how an EEO
counselor is supposed to respond to an initial complaint, and that the agency lied
about its processing issues. Id. at 17-18. The administrative judge construed
these alleged disclosures as ones concerning EEO matters and, thus, outside of
the scope of protection under 5 U.S.C. § 2302(b)(8). ID at 5-7. Again, we
disagree with the administrative judge’s categorization of these claims because
they concern alleged wrongdoing in the agency’s EEO operations as they relate to
the function of carrying out an EEO -based mission, and not the appellant’s
personal claim of EEO violations. Accordingly, we consider these claims below.
Regarding the disclosure that agency employees failed to properly use the
tracking system for pending EEO complaints, the appellant alleged that this
constituted gross mismanagement. IAF, Tab 1 at 17-18. The Board has stated
that “gross mismanagement” is “more than de minimis wrongdoing or
negligence,” and that it does not mean “action or inaction which constitutes
simple negligence or wrongdoing.” See Smith v. Department of the Army,
80 M.S.P.R. 311, ¶ 8 (1998). Rather, an appellant discloses gross
mismanagement when he alleges that a management action or inaction creates a
substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Cassidy v. Department of Justice, 118 M.S.P.R. 74, ¶ 8
(2012); see Smith, 80 M.S.P.R. 311, ¶ 8. Here, the appellant’s allegation is more
one of negligence; indeed, he refers to the agency’s failure to use a tracking
system as “negligence” and a “transgression [].” IAF, Tab 1 at 17-18. There is8
nothing in this disclosure that can be construed as an expression of a concern of
“substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission.” See Cassidy, 118 M.S.P.R. 74, ¶ 8. Accordingly, we
find that the appellant failed to nonfrivolously allege that this disclosure is
protected.
The appellant also alleged below that, during the reasonable
accommodation process, the agency allowed the Human Resources Board or a
member thereof to “influence reasonable accommodation decisions using criteria
outside of disability law.” IAF, Tab 1 at 17. In the initial decision, the
administrative judge appears to have combined this alleged disclosure with the
appellant’s claim that he informed the OIG that the agency allegedly violated the
MD 110 by failing to maintain a “firewall” between the EEO function and the
agency’s defensive function. ID at 6 n.1; IAF, Tab 5 at 8. Neither party has
challenged this construction of the appellant’s claim on review, and we discern no
inherent reason to find such a construction unreasonable. PFR File, Tabs 1, 3.
In considering this alleged disclosure, the administrative judge concluded
that, because the MD 110 does not apply to the agency’s reasonable
accommodation decision-making process, a disinterested observer in the
appellant’s position as an EEO Specialist would not believe that such provisions
applied to the agency’s internal reasonable accommodation review and
deliberations. ID at 6 n.1. The appellant has not challenged the conclusion
regarding the MD 110’s coverage, PFR File, Tab 1, and the administrative judge
otherwise correctly applied the disinterested observer standard to conclude that
the appellant did not have a reasonable belief that the actions of the agency
evidenced the type of wrongdoing defined in section 2302(b)(8)(A), ID at 6 n.1;
see Salerno, 123 M.S.P.R. 230, ¶ 6. Accordingly, we agree with the
administrative judge that the appellant failed to nonfrivolously allege that this
disclosure was protected. 9
The appellant also alleged below that he disclosed to his first- and second-
level supervisors that the agency violated the MD 110 when processing EEO
complaints because agency employees were not giving the proper information to
complainants upon receipt of an initial complaint. IAF, Tab 1 at 17. Because the
Board has held that there is no de minimis exception to an allegation that an
agency has violated a law, rule, or regulation, we find that the appellant
nonfrivolously alleged that this disclosure was protected. See Hudson
v. Department of Veterans Affairs, 104 M.S.P.R. 283, ¶ 11 (2006) (stating that a
disclosure of a violation of law, rule, or regulation is protected even if the
disclosure is of a trivial or de minimis violation).
Regarding the appellant’s alleged disclosure that he reported to his first-
and second-level supervisors that the agency “lied to cover up their utilization” of
the above-discussed “wrongful [EEO] processes,” IAF, Tab 1 at 17, the Board has
stated that disclosures must be specific and detailed, and not simply vague
allegations of wrongdoing, see Linder v. Department of Justice, 122 M.S.P.R. 14,
¶ 14 (2014). Because the appellant has failed to provide any contextual detail to
the alleged disclosure and has offered no more than the vague assertion that some
unidentified agency official lied at some undefined point in time to some
unspecified individual or organization, we find that the appellant failed to
nonfrivolously allege that this disclosure is protected.
Of the four remaining disclosures concerning other allegations of
violations of law, rule, or regulation, and abuses of authority, the
appellant nonfrivolously alleged that two of them are protected are
5 U.S.C. § 2302(b)(8).
The appellant alleged below that he disclosed to his first- and second-level
supervisors that the agency’s Complaints Manager “committed slander against
one of the upstanding attorneys in the Virginia area.” IAF, Tab 1 at 18.
The administrative judge considered this alleged disclosure and concluded that it
was a “vague allegation of wrongdoing that does not rise to the level of a
protected whistleblower disclosure.” ID at 7. He explained that there is no10
“per se law, rule or regulation against slander; rather, it is a civil cause of action
that must be presented to a trier of fact and proven upon a showing of actual harm
or damage.” Id. He further stated that the appellant’s alleged disclosure reflects
nothing more than his personal opinion about, and disagreement with, his
coworker’s alleged statement regarding the private attorney. Id. The appellant
has not challenged this finding on review, and we discern no reason to disturb it.
The appellant also alleged below that he disclosed to his first- and second-
level supervisors that two agency employees sent an EEO complainant an
unredacted report of investigation (ROI) and investigative file containing private
identifiable information in violation of regulations “dealing with the Privacy
Act.” IAF, Tab 1 at 18. The administrative judge considered this allegation and
concluded that it was a “vague disclosure of agency wrongdoing that fails to meet
the nonfrivolous pleading standard.” ID at 7. He explained that the appellant’s
“bare assertion . . . fails to provide the requisite specificity needed to explain why
a reasonable person in the appellant’s position would believe such information
should have been redacted or withheld.” Id. We disagree. In a pleading below,
the appellant asserted that he was disciplined for similar conduct and that he
therefore had every reason to believe such conduct violated certain laws, rules, or
regulations. IAF, Tab 5 at 12-13. We find that this assertion is sufficient to
establish the appellant’s reasonable belief that he was disclosing a violation of
law, rule, or regulation. As such, we find that the appellant nonfrivolously
alleged that he made a protected disclosure in this regard.
The remaining two alleged wrongdoings that the appellant asserts he
disclosed to his first- and second-level supervisor include an allegation that he
had recently learned that another supervisor had called him an offensive and
profane name and had threatened to punch him in the face. IAF, Tab 1 at 18. He
claimed that agency management “promised an [O]IG investigation” into the
matter but “clandestinely” canceled it and orchestrated the appellant’s transfer
instead. Id. The appellant alleges that he disclosed this incident as an abuse of11
authority. Id. His remaining alleged disclosure concerns a claim that an agency
official “fabricated a false allegation that [he] violated the Hatch Act.” Id. at 19.
The administrative judge did not address either of these alleged disclosures,
ID at 5-8, so we address them in the first instance here.
Regarding the alleged disclosure concerning the promised OIG
investigation and the appellant’s assertion that a failure to follow through with
that promise constitutes an abuse of authority, the Board has explained that 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, ¶ 10 n.3. Here, the appellant’s
disclosure can reasonably be construed to allege that agency management
arbitrarily exercised its power to decline to pursue an OIG investigation, which
ultimately benefited the supervisor who allegedly made the offensive and profane
remarks. Given the minimal showing required to meet the nonfrivolous allegation
standard, we find that the appellant has met his burden of nonfrivolously alleging
that he made a protected disclosure in this regard. See Usharauli v. Department
of Health and Human Services, 116 M.S.P.R. 383, ¶ 19 (2011) (stating that any
doubt or ambiguity as to whether the appellant made a nonfrivolous jurisdictional
allegation should be resolved in favor of finding jurisdiction); see also
Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007)
(observing that the appellant’s burden of making a nonfrivolous allegation is low
and requires only a minimal sufficient showing).4
Regarding the appellant’s alleged disclosure concerning the claim that an
agency official falsely claimed that he violated the Hatch Act, the appellant
4 The Board in Jessup relied on the above-stated principle as it relates to an appellant’s
burden to nonfrivolously allege that his disclosure was a contributing factor in a
personnel action. Jessup, 107 M.S.P.R. 1, ¶ 10. Nonetheless, the nonfrivolous
allegation standard is the same whether it is applied to an allegation that an appellant
made a protected disclosure or to an allegation that such a protected disclosure was a
contributing factor in a personnel action. 12
appears to claim that this action constitutes an abuse of authority. IAF, Tab 1
at 18-19. However, the appellant’s assertion does not contain any allegation that
the agency official who allegedly claimed that the appellant violated the Hatch
Act obtained any personal gain or advantage as a result of his claim. Id.; see
Webb, 122 M.S.P.R. 248, ¶ 10 n.3. As such, we find that the appellant failed to
nonfrivolously allege that this disclosure was one of an abuse of authority, and
further find that the allegation does not include any other assertion of wrongdoing
described in section 2302(b)(8)(A). Accordingly, we find that the appellant failed
to make a nonfrivolous allegation in this regard.
To summarize, we find that the appellant nonfrivolously alleged that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8) when he alleged that he
disclosed to his first- and second-level supervisor that: (1) the agency failed to
offer telework of any kind to people with temporary disabilities in violation of
EEOC law; (2) the agency violated the MD 110 when processing EEO complaints
because agency employees were not giving the proper information upon receipt of
an initial complaint; (3) two agency employees sent an EEO complainant an
unredacted ROI and investigative file containing private identifiable information
in violation of regulations “dealing with the Privacy Act”; and (4) agency
management promised an OIG investigation when it learned that a supervisor had
called the appellant an offensive and profane name and threatened to punch him
in the face, but “clandestinely” canceled it and orchestrated the appellant’s
transfer instead.
The administrative judge correctly found that the appellant nonfrivolously alleged
that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when he
filed an OIG complaint and also correctly found that the appellant failed to
nonfrivolously allege that his actions as a part of a class action EEO complaint
constitute protected activity under 5 U.S.C. § 2302(b)(9)(B).
The appellant also asserted below that he engaged in protected
whistleblowing activity when he participated in a class action EEO complaint as a
class agent, giving testimony and evidence in support of the complaint, and when13
he filed an OIG complaint. IAF, Tab 1 at 5, Tab 5 at 4-9. The administrative
judge appears to have implicitly found that the OIG complaint constituted
protected activity, and we agree with that conclusion. ID at 10; see Fisher v.
Department of the Interior, 2023 MSPB 11, ¶ 8 (finding that disclosures of
information to an agency’s OIG are protected regardless of their content, as long
as such disclosures are made “in accordance with applicable provisions of law”).
Regarding the appellant’s allegation that he gave testimony and evidence as
a class agent who was a part of a class action EEO complaint, the appellant
claims that this constitutes protected activity under section 2302(b)(9)(B).
IAF, Tab 1 at 16. Section 2302(b)(9)(B) protects an employee who testifies for or
otherwise lawfully assists any individual in the course of exercising any appeal,
complaint, or grievance right granted by any law, rule, or regulation. 5 U.S.C.
§ 2302(b)(9)(B).
In assessing this allegation, the administrative judge found that, although
filing an EEO class complaint with the EEOC involves a right to complain, a right
that the Board acknowledges is related to the language in section 2302(b)(9)(B),
see Linder, 122 M.S.P.R. 14, ¶¶ 7, 9, the appellant here is “personally involved in
the proceeding . . . [and] like all other proposed class members, is seeking to have
his EEO rights vindicated,” ID at 9. He reasoned that the appellant’s role,
therefore, “is dissimilar from other types of protected activity the Board has
identified as within the aegis of section 2302(b)(9)(B), namely, serving as a
witness in another employee’s appeal, complaint, or grievance, or representing
another employee in any such proceeding.” ID at 10 (emphasis in original).
Rather, the administrative judge concluded that the appellant’s allegation falls
under section 2302(b)(1) and (b)(9)(A)(ii) because he “has a personal stake in the
viability of the underlying EEO litigation as a litigant.” Id. As such, he found
that this alleged activity fails, “as a matter of law,” to constitute protected
activity under section 2302(b)(9)(B). ID at 8. 14
On review, the appellant challenges these findings, asserting that the
administrative judge “ignored that [he] already had an individual [EEO] case,”
and that he was “help[ing] others by representing them in the class action.”
PFR File, Tab 1 at 5. He further claims that his relief was not enhanced by filing
the class action complaint and that, for the administrative judge to find that his
participation in the class action complaint would benefit him is to ignore his
individual EEO complaints. Id. The appellant’s arguments are unavailing.
Although the administrative judge did not address the appellant’s individual EEO
complaints, the Board has long held that an administrative judge’s failure to
discuss all of the evidence specifically does not mean that he did not consider it
in reaching his decision. Marques v. Department of Health and Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Moreover, the appellant has not explained how he would not benefit from a class
action EEO complaint, despite having his own individual EEO complaint, as it is
conceivable that a class action complaint could result in broader relief meant to
address the class that would not have been considered for his own complaint.
Accordingly, we discern no error in the administrative judge’s conclusion that the
appellant’s activity does not constitute protected activity under section 2302(b)(9)
(B), and instead is more closely aligned with the activity described in
section 2302(b)(9)(A)(ii). ID at 10. Because the Board lacks jurisdiction over an
alleged violation of section 2302(b)(9)(A)(ii), we agree with the administrative
judge that the appellant failed to nonfrivolously allege that he engaged in
protected activity in this regard. See Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013).
The appellant nonfrivolously alleged that his protected disclosures were a
contributing factor to the agency’s decision to remove him, but we agree with the
administrative judge that the appellant failed to nonfrivolously allege that his
OIG complaint was a contributing factor to his removal.
Because the appellant nonfrivolously alleged that four of his disclosures
were protected under 5 U.S.C. § 2302(b)(8) and that he engaged in activity15
protected under 5 U.S.C. § 2302(b)(9), he must next nonfrivolously allege that at
least one of those disclosures or his activity was a contributing factor to the
personnel action 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 action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id.
Here, the appellant alleged that he made all four of the disclosures to his
first- and second-level supervisors between December 2017 and March 2018.
IAF, Tab 1 at 17-19. The record shows that the appellant’s second-level
supervisor was the proposing official in the appellant’s removal and that he
proposed the action less than a year later, on August 30, 2018. IAF, Tab 6
at 26-29. 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). Accordingly, we find that
the appellant has met the knowledge/timing test and, therefore, has nonfrivolously
alleged that his four protected disclosures were a contributing factor to his
removal.
Regarding the OIG complaint, the record establishes that the complaint was
filed on March 2, 2018, but the appellant does not appear to have alleged below
that any agency official responsible for his removal was aware that he had filed
the complaint. IAF, Tab 1 at 5, 16, Tab 5 at 39-43. Thus, as noted above, the16
administrative judge found “no nonfrivolous allegation any official involved in
his removal was knowledgeable of this filing,” and he concluded that the
appellant failed to meet the knowledge/timing test. ID at 10-11. Nonetheless, he
considered additional factors relevant to the contributing factor question as an
alternative to the knowledge/timing test, such as the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing or
protected activity was personally directed at the proposing or deciding official,
and whether any such individuals had a desire or motive to retaliate against the
appellant. ID at 5 (citing Rumsey v. Department of Justice, 120 M.S.P.R. 259,
¶ 26 (2013)). He acknowledged that, although the proposing official—the
appellant’s second-level supervisor—was mentioned in the OIG complaint, the
appellant had an opportunity to raise a claim of reprisal in response to the
proposed removal and did not do so. ID at 11. He further stated that the basis for
the agency’s removal action was “facially” strong and that there was no other
circumstantial evidence in the record nonfrivolously linking the appellant’s OIG
complaint with his removal for cause a year later. ID at 12. Accordingly, he
found that the appellant failed to nonfrivolously allege that his OIG complaint
was a contributing factor in the agency’s removal action. Id.
On review, the appellant asserts, for the first time, that OIG contacted both
the proposing and deciding officials and that they were both aware of the
complaint. PFR File, Tab 1 at 4. Although the appellant did not allege below
that the proposing and deciding officials had knowledge of the OIG complaint,
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 and Human17
Services, 94 M.S.P.R. 571, ¶ 30 (2003). Here, even though the appellant now
claims that relevant agency officials had knowledge of the OIG complaint, he has
still not alleged when they gained that knowledge. PFR File, Tab 1 at 4. Because
they could have conceivably gained knowledge of the complaint after his removal
was proposed or effected, we, like the administrative judge, cannot find that the
appellant has met the knowledge/timing test.
As such, we turn to the administrative judge’s assessment of the alternative
methods to determine whether the appellant nonfrivolously alleged contributing
factor. As discussed above, the administrative judge considered the relevant
factors set forth in Board precedent, such as Rumsey. ID at 11-12. The appellant
has not specifically challenged this analysis, except to argue that the
administrative judge inappropriately considered the merits of the case when he
concluded that the agency’s removal action was facially strong. PFR File, Tab 1
at 3. We discern no error in the administrative judge’s basic assessment of the
underlying removal action at the jurisdictional stage because, when an appellant
has failed to meet the knowledge/timing test, the strength or weakness of that
action is a factor to consider when determining whether the appellant
nonfrivolously alleged that his OIG complaint was a contributing factor to his
removal. See Rumsey, 120 M.S.P.R. 259, ¶ 26. We agree with his assessment
that, at least facially, the removal action appears to be supported, and further add
that the appellant has not alleged any set of facts that, if true, support a
conclusion that either the proposing or deciding officials had a desire or motive to
retaliate against him. As such, we will not disturb the administrative judge’s
conclusion that the appellant failed to nonfrivolously allege that his OIG
complaint was a contributing factor to his removal. 18
In sum, we find that the appellant nonfrivolously alleged that he made four
protected disclosures that were a contributing factor to his removal. As such, we
find that the appellant has established jurisdiction over this appeal.5
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, and we remand this case to the Washington Regional Office for further
adjudication in accordance with this Remand Order. 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.
5 The appellant has submitted with his petition for review a declaration from a coworker
regarding his relationship with the appellant and his observations of the appellant’s
duties and the alleged facts surrounding his disclosures, as discussed above. PFR File,
Tab 1 at 7-9. 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 closed before the administrative judge despite the
party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980 ).
Here, the appellant claims that he did not submit the declaration below because he
believed the administrative judge was not yet considering the merits of the appeal.
PFR File, Tab 1 at 4. Implicit in this statement is the appellant’s suggestion that the
newly submitted declaration goes to the merits of his appeal. Additionally, he has not
claimed that the information contained in the declaration was unavailable before the
record closed. Based on these reasons, we decline to consider the declaration. 19 | Willingham_Nathaniel_J_DC-1221-19-0722-W-1_Remand_Order.pdf | 2024-07-31 | NATHANIEL J. WILLINGHAM v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-19-0722-W-1, July 31, 2024 | DC-1221-19-0722-W-1 | NP |
818 | https://www.mspb.gov/decisions/nonprecedential/Floyd_KellyCH-0845-23-0152-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLY FLOYD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-23-0152-I-1
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kelly Floyd , Proctorville, Ohio, pro se.
Karla W. Yeakle and Maureen Ann Kersey , 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 as settled her appeal of the Office of Personnel Management’s
December 14, 2022 reconsideration decision. On petition for review, the
appellant argues that the administrative judge’s background description of 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).
overpayment at issue in the settlement agreement is not accurate. Petition for
Review File, Tab 1 at 4. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.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 RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 Any omission or error by the administrative judge in describing the reasons for the
overpayment of the annuity at issue in the settlement agreement does not impact the
appellant’s substantive rights and, therefore, does not provide a basis to disturb the
initial decision. 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).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Floyd_KellyCH-0845-23-0152-I-1_Final_Order.pdf | 2024-07-31 | KELLY FLOYD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-23-0152-I-1, July 31, 2024 | CH-0845-23-0152-I-1 | NP |
819 | https://www.mspb.gov/decisions/nonprecedential/Wade_Shirley_B_NY-0353-19-0176-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY B. WADE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0353-19-0176-I-1
DATE: July 31, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shirley B. Wade , Brooklyn, 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 her 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 as MODIFIED with respect to the jurisdictional
analysis.
BACKGROUND
The appellant has been employed by the agency as a Mail Handler since
1986. Initial Appeal File (IAF), Tab 6 at 7. On October 2, 2000, she suffered a
compensable injury and has been working in various modified assignments ever
since. Id. at 2-3. By letter dated June 11, 2019, the agency requested from the
appellant an updated medical note that specified her restrictions. IAF, Tab 1
at 10. The letter indicated that the last medical note on file for the appellant was
dated January 18, 2011. Id.
The appellant submitted an updated medical note on July 5, 2019. IAF,
Tab 1 at 11, Tab 6 at 12. However, the agency discontinued her limited duty
assignment on or around that date and did not offer her a new one until August 1,
2019. IAF, Tab 9 at 8-9.
The appellant filed a restoration appeal and requested a hearing. IAF,
Tab 1. The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction on the basis that the appellant failed to make a
nonfrivolous allegation that the agency’s new restoration offer amounted to an
arbitrary and capricious denial of restoration. IAF, Tab 11, Initial Decision. 2
The appellant has filed a petition for review, “asking for a petition for
review” and including a copy of the initial decision. Petition for Review File,
Tab 1. The agency did not file a response.
ANALYSIS
To establish jurisdiction over a restoration appeal, a partially recovered
individual such as the appellant must make nonfrivolous allegations that (1) she
was absent from her position due to a compensable injury, (2) she recovered
sufficiently to return to duty on a part-time basis, or to return to a position with
less demanding requirements than those previously required of her, (3) the agency
denied her request for restoration, and (4) the denial was arbitrary and capricious.
Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 12 (2016). An agency’s
rescission of a previously provided restoration may constitute an appealable
denial of restoration. Scott v. U.S. Postal Service , 118 M.S.P.R. 375, ¶ 9 (2012).
Based on our understanding of the pleadings and the facts of this case, the
administrative judge seems to have overlooked the appellant’s primary concern.
Specifically, it appears that the appellant is contesting the agency’s
discontinuation of her former limited duty assignment and the month of work that
she lost while she was waiting for a new one. Nevertheless, regardless of how the
appellant's claim is construed, intervening precedent makes clear that the Board
lacks jurisdiction over her appeal. After the initial decision in this case was
issued, the Board issued Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20,
holding that a denial of restoration is “arbitrary and capricious” only if the
agency fails to satisfy its minimum restoration obligations under 5 C.F.R.
§ 353.301(d), namely, to search within the local commuting area for vacant
positions to which it can restore a partially recovered employee and to consider
her for any such vacancies. Although the U.S. Postal Service has rules that
obligate it to offer modified assignments when the work is available regardless of
whether the duties constitute those of an established position, a violation of those3
rules cannot form the basis for a Board appeal under 5 C.F.R. § 353.304(c).
Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶¶ 14-15. In other words, an
“agency’s efforts to find work that did not constitute the essential functions of an
established position cannot form the basis of a restoration claim before the
Board.” Id., ¶ 18. The necessary implication of Cronin is that an agency’s
discontinuation of a limited duty assignment that does not comprise the essential
functions of an established position is also outside the Board’s restoration
jurisdiction. For these reasons, we affirm the dismissal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Wade_Shirley_B_NY-0353-19-0176-I-1_Final_Order.pdf | 2024-07-31 | SHIRLEY B. WADE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0353-19-0176-I-1, July 31, 2024 | NY-0353-19-0176-I-1 | NP |
820 | https://www.mspb.gov/decisions/nonprecedential/Beddington_James_P_PH-0752-20-0002-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES P. BEDDINGTON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-20-0002-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James P. Beddington , Stratford, Connecticut, pro se.
Anthony T. Rice and Michael R. Salvon , Windsor, Connecticut, 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 in this
appeal. Petition for Review (PFR) File, Tab 1. For the reasons set forth below,
we DISMISS the appeal as settled.
¶2After the filing of the petition for review, the parties filed a joint motion to
dismiss the appeal and attached a document entitled “SETTLEMENT
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
AGREEMENT,” which was fully executed on June 20, 2024. PFR File, Tab 10.
The document provides, among other things, that it “resolves any and all claims,
complaints or appeals which [the appellant] has, or could have, filed or initiated
up to the date of this Agreement is fully executed, in any forum (including, but
not limited to the [Equal Employment Opportunity Commission], the MSPB (to
specifically include Board No. PH-0752-20-0002-I-1), and/or the District Court),
in any way relating to his employment with the Postal Service.” Id. at 5.
¶3The Board retains jurisdiction to enforce a settlement agreement if it has
been entered into the record for that purpose. Delorme v. Department of the
Interior, 124 M.S.P.R. 123, ¶¶ 16, 21 (2017). If the parties enter an agreement
into the record and it is approved by the administrative judge, it will be
enforceable by the Board unless the parties clearly specify that they do not want
Board enforcement. Stewart v. U.S. Postal Service , 73 M.S.P.R. 104, 107-08
(1997); see 5 C.F.R. § 1201.41(c)(2)(i) (providing that a settlement agreement
will be made a part of the record, and the Board will retain jurisdiction to ensure
compliance, if the parties offer it for inclusion into the record and the judge
approves it).
¶4Here, we find that the parties have entered into a settlement agreement and
understand its terms. PFR File, Tab 10 at 5-6. Additionally, although the
agreement is silent concerning whether the parties intend for the Board to retain
enforcement authority, nothing in the agreement clearly specifies that the parties
do not wish for the Board to retain enforcement authority over the agreement.
See Stewart, 73 M.S.P.R. at 107-08; 5 C.F.R. § 1201.41(c)(2)(i). Further, we find
that the agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes. Accordingly, we
find that dismissing the appeal with prejudice to refiling (i.e., the parties normally
may not refile this appeal) is appropriate under these circumstances.2
¶5This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issues the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL 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 | Beddington_James_P_PH-0752-20-0002-I-1_Final_Order.pdf | 2024-07-30 | JAMES P. BEDDINGTON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-20-0002-I-1, July 30, 2024 | PH-0752-20-0002-I-1 | NP |
821 | https://www.mspb.gov/decisions/nonprecedential/Reyes_Anna_E_SF-0353-19-0204-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNA E REYES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-19-0204-I-1
DATE: July 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Guillermo Mojarro , Corpus Christi, Texas, for the appellant.
Jessica Villegas , Esquire, San Francisco, California, for the agency.
Philip R. Ingram , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the case to the Western Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2The agency employed the appellant as a Mail Processing Clerk at the
Industry, California Processing and Distribution Center (Industry P&DC). Initial
Appeal File (IAF), Tab 1 at 1, Tab 6 at 155. She suffered several compensable
injuries, the most recent of which occurred in October 2013. IAF, Tab 5 at 19,
24-26. She returned to duty from that injury on or about May 14, 2018, and
subsequently served in a series of limited duty modified job assignments. IAF,
Tab 5 at 19, Tab 6 at 156, 159, 162. On January 30, 2019, the agency offered the
appellant a new limited duty modified job assignment at the Industry P&DC,
which she initially accepted. IAF, Tab 1 at 20. The next day, the appellant
rejected the offer, asserting that it was outside her medical restrictions. Id. at 11.
¶3The appellant timely filed this appeal alleging that the agency improperly
denied her request for restoration as a partially recovered employee and
discriminated against her based on her disability. IAF, Tab 1. The administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 13, Initial Decision (ID). He further found that, absent an otherwise
appealable action, the Board lacks jurisdiction over the appellant’s allegations of
disability discrimination and reprisal. ID at 6.
¶4The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed a response. Id., Tab 5. On April 17, 2020, the
appellant filed a motion to submit an additional pleading, i.e., a March 27, 2020
decision of the Office of Workers’ Compensation Programs (OWCP) finding that
the modified work position that the agency offered her was outside her medical
restrictions. PFR File, Tab 8 at 3. The Acting Clerk of the Board granted the
appellant’s motion. PFR File, Tab 10. The appellant submitted her evidence,
arguing that OWCP’s finding shows that the agency’s modified job offer was not2
a proper offer of restoration. PFR File, Tab 11 at 4, 8-12. The agency filed a
response, arguing that the appellant’s new evidence does not show that the
administrative judge erred in dismissing the appeal. PFR File, Tab 12 at 4, 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5The 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. Kingsley
v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b).
Under OPM’s regulations, such employees have different substantive rights based
on whether they have fully recovered, partially recovered, or are physically
disqualified from their former or equivalent positions. Kingsley, 123 M.S.P.R.
365, ¶ 9; 5 C.F.R. § 353.301. Partially recovered employees, like the appellant,
are those who, “though not ready to resume the full range” of duties, have
“recovered sufficiently to return to part-time or light duty or to another position
with less demanding physical requirements.” Kingsley, 123 M.S.P.R. 365, ¶ 9;
5 C.F.R. § 353.102.
¶6To establish jurisdiction over a claim of denial of restoration as a partially
recovered employee, an appellant is required to make nonfrivolous allegations of
the following: (1) she was absent from her position due to a compensable injury;
(2) she recovered sufficiently to return to duty on a part-time basis or to return to
work in a position with less demanding physical requirements than those
previously required of her; (3) the agency denied her request for restoration; and
(4) the denial was arbitrary and capricious because of the agency’s failure to
perform its obligation under 5 C.F.R. § 353.301(d).2 Cronin v. U.S. Postal
Service, 2022 MSPB 13, ¶ 12; Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404,
¶ 12 (2016); 5 C.F.R. § 1201.57(a)(4), (b). Once an appellant establishes
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).3
jurisdiction, she is entitled to a hearing at which she must prove the merits of her
restoration appeal, i.e., all four of the above elements, by a preponderance of the
evidence.3 Kingsley, 123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4).
However, under appropriate circumstances, a restoration may be deemed so
unreasonable as to amount to a denial of restoration within the Board’s
jurisdiction. Kingsley, 123 M.S.P.R. 365, ¶ 13. For example, a claim that
restoration was effectively denied may involve allegations that a partially
recovered appellant is incapable of performing the job duties of the position to
which she was restored. Id. To make a nonfrivolous showing of Board
jurisdiction over an appeal on that basis, an appellant must present specific,
independent evidence corroborating her allegations. Jones v. U.S. Postal Service ,
86 M.S.P.R. 464, ¶ 5 (2000).
¶7As to the first two prongs of the test set forth above, the administrative
judge found it undisputed that (1) the appellant was absent from her position due
to a compensable injury and that (2) she recovered sufficiently to return to duty
on a part-time basis or to return to work in a position with less demanding
physical requirements than those previously required of her. ID at 4. We agree.
¶8Turning to the third prong, the administrative judge found that the
appellant’s bare assertion that the agency’s January 30, 2019 modified job offer
exceeded her medical restrictions did not constitute a nonfrivolous allegation that
the agency effectively denied her request for restoration. ID at 4-6. As noted
above, after the close of the record on review, the appellant submitted a
March 27, 2020 OWCP decision, issued well after the close of the record below,
in which it found that the agency’s modified job offer was unsuitable because it
exceeded her medical restrictions. PFR File, Tab 11 at 8-12. The Board is bound
by OWCP’s suitability determination. Paszko v. U.S. Postal Service ,
119 M.S.P.R. 207, ¶ 9 (2013). We find, therefore, that OWCP’s decision is new
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
and material evidence. We further find that the agency’s January 30, 2019
limited-duty job offer was outside of the appellant’s medical restrictions and was
tantamount to a denial of restoration. See Paszko, 119 M.S.P.R. 207, ¶ 9. The
appellant has nonfrivolously alleged that the agency denied her request for
restoration. Jones, 86 M.S.P.R. 464, ¶ 5.
¶9Although we find that the appellant has satisfied the first, second, and third
jurisdictional requirements in this partial restoration appeal, we are unable to
make a determination about the fourth jurisdictional element on the existing
record.4 After the initial decision in this appeal was issued, the Board issued its
decision in Cronin, 2022 MSPB 13, which clarified when a denial of restoration
may be arbitrary and capricious.5 In Cronin, the Board explained that, in
considering the fourth jurisdictional element, the issue before the Board is limited
to whether the agency failed to comply with the minimum requirement of
5 C.F.R. § 353.301(d), i.e., to search within the local commuting area for vacant
positions to which it can restore a partially recovered employee and to consider
her for any such vacancies. Cronin, 2022 MSPB 13, ¶ 20. The Board in Cronin
further held that, contrary to its prior suggestion in Latham v. U.S. Postal Service ,
117 M.S.P.R. 400, (2012), superseded in part by regulation on other grounds as
stated in Kingsley, 123 M.S.P.R. 365, ¶ 10, claims of prohibited discrimination or
reprisal cannot serve as an “alternative means” of showing that a denial of
restoration was arbitrary and capricious. Id.,¶ 21.
¶10Because the existing record is devoid of evidence or argument regarding
whether the agency’s denial of restoration was arbitrary and capricious, we
remand the matter to the regional office to provide the parties notice and an
4 Although the administrative judge stated at the end of the initial decision that the
appellant failed to nonfrivolously allege that the agency arbitrarily and capriciously
denied her restoration, we do not view this as a finding on the fourth element of the
appellant’s burden. ID at 7. Rather, this is a restatement of the overall burden.
5 Because the Board issued Cronin while this appeal was pending, it is given retroactive
effect and applies to this appeal. See Desjardin v. U.S. Postal Service , 2023 MSPB 6,
¶ 18 n.8. 5
opportunity to further develop the record. If the appellant makes a nonfrivolous
allegation regarding the fourth jurisdictional element, she is entitled to the
hearing she requested on the merits of her claim.
ORDER
¶11For 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.6 | Reyes_Anna_E_SF-0353-19-0204-I-1_Remand_Order.pdf | 2024-07-30 | ANNA E REYES v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-19-0204-I-1, July 30, 2024 | SF-0353-19-0204-I-1 | NP |
822 | https://www.mspb.gov/decisions/nonprecedential/Ruggiero_ElaineNY-0831-23-0068-I-1_FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELAINE RUGGIERO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-23-0068-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reed Chronis , Glens Falls, New York, for the appellant.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*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 appeal of an Office of Personnel Management (OPM)
reconsideration decision as untimely filed without good cause shown for the
delay. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The administrative judge afforded the appellant an opportunity to file
evidence and argument demonstrating that her appeal was timely filed or that
good cause existed for her delay in filing, but the appellant did not respond to the
timeliness order. Initial Appeal File, Tab 4 at 3. On review, the appellant
alleges, among other things, that she received an unidentified letter from OPM on
October 20, 2022, and OPM’s response to her Freedom of Information Act
(FOIA) request on December 12, 2022. Petition for Review File, Tab 1 at 4. She
notes that OPM’s response to her FOIA request advised her that she had 90 days
from the date of the response to file an appeal. Id.
¶3The Board will not consider a new argument raised for the first time on
review absent a showing that it is based on new and material evidence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). Even if we were to
consider her allegations, they do not provide a basis for disturbing the
administrative judge’s finding that her appeal was untimely filed without good
cause shown for the delay. Moreover, the appellant has not shown that the
evidence attached to her petition for review is new or material. See Okello v.2
Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009) (stating that 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); see also 5 C.F.R.
§ 1201.115(d). Her evidence predates the initial decision, and the appellant
submitted at least one document below. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). Nor has the appellant shown that her evidence is of
sufficient weight to warrant a different outcome from that of the initial decision.
See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ruggiero_ElaineNY-0831-23-0068-I-1_FInal_Order.pdf | 2024-07-30 | ELAINE RUGGIERO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-23-0068-I-1, July 30, 2024 | NY-0831-23-0068-I-1 | NP |
823 | https://www.mspb.gov/decisions/nonprecedential/Thorpe_Gwendolyn_R_DC-844E-19-0748-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GWENDOLYN RENEE THORPE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0748-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gwendolyn Renee Thorpe , Virginia Beach, Virginia, pro se.
Sherri A. McCall , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction because the Office of Personnel
Management (OPM) had not issued a final decision. On petition for review, the
appellant asserts that she still has not received a final decision from OPM 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).
argues that the delay constitutes a refusal to act such that the Board should take
jurisdiction over her 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.
For the reasons discussed below, we DENY the petition for review, VACATE the
initial decision, and DISMISS the appeal as moot.
The appellant filed this Board appeal challenging OPM’s initial decision
denying her Federal Employees’ Retirement System (FERS) disability retirement
application. Initial Appeal File (IAF), Tab 1. The administrative judge issued a
show cause order in which he informed the appellant that the Board may lack
jurisdiction over her appeal because OPM had not yet issued a final decision in
her case, and instructed her to file evidence and argument proving that the Board
had jurisdiction over her appeal. IAF, Tab 3. The appellant filed a response in
which she stated that she had filed a request for reconsideration, but
acknowledged that she had not yet received a final decision regarding her
disability retirement application. IAF, Tab 4 at 1. The administrative judge
subsequently issued an initial decision dismissing the appeal for lack of
jurisdiction based on the fact that OPM had not yet issued a final, appealable
decision on the matter. IAF, Tab 6, Initial Decision (ID) at 1-3.2
The appellant timely filed a petition for review alleging that she still had
not received a final decision from OPM, and arguing that the delay constituted a
refusal to act such that the Board should take jurisdiction over her appeal.
Petition for Review (PFR) File, Tab 1 at 1-3. The Office of the Clerk of the
Board issued an order to show cause instructing OPM to submit evidence and
argument addressing the appellant’s assertion that it did not intend to issue a final
decision concerning her disability retirement application, or alternatively, to
submit evidence demonstrating that it had issued a final appealable decision on
the matter since the issuance of the initial decision in this case. PFR File, Tab 5
at 1-3. The order also provided the appellant with the opportunity to reply to
OPM’s response. Id. at 3-4. In a timely response to the order, OPM produced
evidence that it had issued a final decision approving the appellant’s disability
retirement application and requested that the appeal be dismissed as moot. PFR
File, Tab 7 at 4-12. The appellant did not file a reply to OPM’s response.
Generally, the Board has jurisdiction over OPM determinations affecting an
appellant’s rights or interests under FERS only after OPM has issued a final or
reconsideration decision. 5 U.S.C. § 8461(e); McNeese v. Office of Personnel
Management, 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
(Table); 5 C.F.R. § 841.308. As an exception to this general rule, the Board may
assert jurisdiction over an appeal concerning a retirement matter in which OPM
has refused or improperly failed to issue a final decision. Okello v. Office of
Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014). The administrative
judge properly found that the Board did not have jurisdiction over the appeal, as
OPM had not issued a final decision at the time the initial decision was issued.
ID at 3. This appeal has now been rendered moot based on the fact that OPM has
demonstrated that it has issued a final decision approving the appellant’s
disability retirement application. PFR File, Tab 7 at 7-10. 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 | Thorpe_Gwendolyn_R_DC-844E-19-0748-I-1_Final_Order.pdf | 2024-07-30 | GWENDOLYN RENEE THORPE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0748-I-1, July 30, 2024 | DC-844E-19-0748-I-1 | NP |
824 | https://www.mspb.gov/decisions/nonprecedential/Wilkerson_Reginald_L_CH-844E-20-0199-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINALD L. WILKERSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-20-0199-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reginald L. Wilkerson , Fishers, Indiana, pro se.
Shaquita Stockes , 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)
dismissing his application for a disability retirement annuity under the Federal
Employees’ Retirement System (FERS) as untimely filed. For the reasons set
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The appellant filed an appeal of OPM’s reconsideration decision dismissing
his FERS disability retirement appeal as untimely filed, and the administrative
judge held a hearing. Initial Appeal File (IAF), Tabs 1, 13. The administrative
judge issued a May 19, 2020 initial decision affirming OPM’s decision. IAF,
Tab 14, Initial Decision (ID). The initial decision specifically stated that the
deadline to file a petition for review was June 23, 2020, and provided information
on how to file a petition for review. ID at 7-8. The appellant filed a petition for
review, with a postmark dated December 23, 2020, which is the filing date
acknowledged by the Board. Petition for Review (PFR) File, Tab 1 at 1; see PFR
File, Tab 2 at 1.
The Acting Clerk of the Board notified the appellant that, because he filed
his petition for review after June 23, 2020, i.e., over 35 days following the
issuance of the May 19, 2020 initial decision, it was untimely filed. PFR File,
Tab 2 at 2. The letter explained to the appellant that the Board’s regulations
require a petition for review that appears untimely to be accompanied by a motion
to accept the filing as timely and/or to waive the time limit for good cause, and
set a deadline for the appellant to file such a motion. Id. The appellant did not
file the required motion concerning the timeliness of his petition for review. The
agency did not file a response to the appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, a petition for review must be filed within 35 days after the date
of issuance of the initial decision or, if the petitioner shows that he received the
initial decision more than 5 days after the date of issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114(e). The Board may
waive the time limit for filing a petition for review upon a showing of good cause2
for the untimely filing. 5 C.F.R. § 1201.114(g). To establish good cause, the
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumstances of the case. Palermo v. Department of the Navy ,
120 M.S.P.R. 694, ¶ 4 (2014). To determine whether an appellant has shown
good cause, the Board will consider the length of the delay, the reasonableness of
his excuse and his showing of due diligence, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond his
control that affected his ability to comply with the time limit or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition. Id.
Here, the administrative judge informed the appellant that the initial
decision would become final on June 23, 2020, unless a petition for review was
filed by that date. ID at 7. The appellant filed his petition for review on
December 23, 2020, six months late, and failed to respond to the Clerk’s order
instructing him to explain his untimeliness. See PFR File, Tab 1 at 1-2. An
appellant who files a petition for review late but does not file the required motion
concerning the timeliness of his petition for review has failed to show the due
diligence and ordinary prudence necessary for the Board to find good cause for
his delay in filing. Galleno v. Office of Personnel Management , 63 M.S.P.R. 440,
442 (1994) (finding that an appellant who filed her petition for review 4 months
late, and failed to file the required motion on timeliness, failed to show good
cause for waiver of the filing deadline), aff’d, 48 F.3d 1236 (Fed. Cir. 1995)
(Table); see Goldberg v. Department of Defense , 39 M.S.P.R. 515, 518 (1989)
(stating that in the absence of good cause shown, the Board will not waive its
timeliness requirements even if the delay is minimal); Mejia v. Office of
Personnel Management , 38 M.S.P.R. 472, 473 (1988) (finding that, where the
appellant failed to respond to the Clerk’s notice concerning the timeliness of his
petition for review and his untimely filing did not include a motion for waiver of
the time limit or an affidavit or statement to establish good cause, the appellant3
has not demonstrated good cause for the untimely filing). Because the appellant
failed to file the required motion, as was explained in the Acting Clerk’s
January 13, 2021 letter acknowledging his petition for review, we find that he has
failed to establish good cause for the waiver of the time limit. PFR File, Tab 2
at 1-2; Galleno, 63 M.S.P.R. at 442; Goldberg, 39 M.S.P.R. at 518; Mejia,
38 M.S.P.R. at 473; 5 C.F.R. § 1201.114(e).
Although the appellant failed to respond to the Clerk of the Board’s notice
instructing him to demonstrate that his petition for review was timely filed or that
good cause existed for the late filing, see PFR File, Tab 2, in his petition for
review filing, he appears to suggest that he did not receive the initial decision
until December 11, 2020, PFR File, Tab 1 at 2. The appellant states that he
contacted the OPM representative regarding the status of his appeal in May 2020
and was informed that a decision had been issued, but that the OPM
representative refused to provide him a copy of the decision at that time. Id. He
states that he reached out to OPM several additional times over the following
months and was told that he would be sent something in the mail by one official
and that his case was still being considered by a different official, and indicates
that OPM finally sent him a copy of the decision on December 11, 2020. Id. The
appellant also provides a photograph of an envelope reflecting a return address
from OPM and an illegible postmark stamp, which he appears to indicate
contained the copy of the initial decision he received on December 11, 2020. Id.
at 4.
Even if we were to consider the appellant’s argument as a claim that good
cause exists for his untimeliness because he did not receive the initial decision
from the Board and instead first received it in the first instance on December 11,
2020, from an OPM official, we conclude that this explanation is not reasonable
as it is contradicted by the Board’s records indicating that the initial decision was
electronically served on the appellant. The certificate of service for the initial
decision indicates that on May 19, 2020, the regional office served the initial4
decision on the appellant electronically, since he had registered as an e-filer.
IAF, Tab 15; see IAF, Tab 10 at 2; 5 C.F.R. § 1201.14(m)(2) (2020) (explaining
that Board documents served electronically on registered e-filers are deemed
received on the date of electronic submission). Registration as an e-filer
constitutes consent to accept electronic service of pleadings filed by other
registered e-filers and documents issued by the Board. 5 C.F.R. § 1201.14(e)
(2020). Additionally, as an e-filer, the appellant was responsible for ensuring
that filters did not block the Board’s emails and for monitoring case activity in
the Repository to ensure that he had received all case-related documents.
5 C.F.R. § 1201.14(j)(2)-(3) (2020). There is also no indication that the appellant
attempted to change his method of service to regular mail or to withdraw as an
e-filer at any point. See 5 C.F.R. § 1201.14(e)(4), (6) (2020) (permitting
withdrawal of registration as an e-filer and outlining the process for changing the
email address of record). Consequently, the record does not support the
appellant’s suggestion that he did not receive the initial decision from the Board,
and instead received it for the first time from an OPM official on
December 11, 2020.2
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 appeal challenging OPM’s decision dismissing his
application for a FERS disability retirement appeal as untimely filed .
2 Additionally, even if we were to assume that the appellant first received a hard copy
of the initial decision from an OPM representative on December 11, 2020, we would
still conclude that he did not act diligently in filing his petition for review because he
acknowledges that he was told by the OPM official sometime in May 2020 that the
initial decision had already been issued, but nevertheless did not attempt to file a
petition for review or request an extension of time to do so until December 23, 2020.
See PFR File, Tab 1 at 2.5
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Wilkerson_Reginald_L_CH-844E-20-0199-I-1_Final_Order.pdf | 2024-07-30 | REGINALD L. WILKERSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-844E-20-0199-I-1, July 30, 2024 | CH-844E-20-0199-I-1 | NP |
825 | https://www.mspb.gov/decisions/nonprecedential/Doe_JohnPH-1221-17-0223-W-1_and_PH-1221-17-0449-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE,1
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
PH-1221-17-0223-W-1
PH-1221-17-0449-W-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.
Marcus S. Graham , 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.
1 The Board finds it appropriate to grant the appellant’s request for anonymity in these
matters. Accordingly, these matters have been recaptioned as “John Doe.”
Additionally, the initial decision in these joined matters has been recaptioned as “John
Doe” and references to the appellant’s name in the initial decision have been changed to
“John Doe.”
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
denied her request for corrective action in her joined individual right of action
(IRA) appeals. 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 joined 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, except as expressly MODIFIED by this Final Order to clarify the
administrative judge’s analysis of the following issues: (1) whether five
allegedly protected disclosures raised in a prior IRA appeal could be considered
in these joined appeals, and (2) whether an agency official with knowledge of the
appellant’s alleged disclosures improperly influenced the selecting official for
vacancy announcement number 1588576. We VACATE the administrative
judge’s dismissal of the request for corrective action, as dismissal is inappropriate
where the appeal is denied on the merits.
BACKGROUND
In September 2010, the appellant resigned from her position as a Registered
Nurse (RN) at the agency’s Togus Veterans Affairs Medical Center (VAMC) in
Augusta, Maine. Doe v. Department of Veterans Affairs , MSPB Docket No. PH-2
1221-17-0223-W-1, Initial Appeal File (0223 IAF), Tab 56 at 202. In May 2014,
the agency appointed the appellant to an RN position at its Manchester VAMC in
Manchester, New Hampshire. 0223 IAF, Tab 53 at 7. In October 2014, the
appellant’s first-level supervisor requested that a nurse professional standards
board (NPSB) be convened to conduct a summary review of the appellant’s
employment during her probationary period, and in November 2014, the NPSB
recommended that the appellant be separated from the agency during her
probationary period. 0223 IAF, Tab 5 at 18-19, Tab 53 at 7, Tab 56 at 72-73.
The Manchester VAMC director approved the NPSB’s recommendation and
terminated the appellant, effective November 28, 2014. 0223 IAF, Tab 53 at 7.
In December 2016, the appellant filed a complaint with the Office of
Special Counsel (OSC) in which she alleged that the agency had forced her to
resign in September 2010, terminated her in November 2014, and failed to select
her for 15 positions in retaliation for her disclosures of fraud, waste, abuse of
authority, and violations of law. 0223 IAF, Tab 1 at 9-30. On March 24, 2017,
OSC informed the appellant that it had terminated its inquiry into her allegations
regarding the agency’s alleged prohibited personnel practices and notified her of
her right to seek corrective action from the Board. Id. at 31-32.
On March 30, 2017, the appellant timely filed a Board appeal from OSC’s
determination and requested a hearing. 0223 IAF, Tab 1.
Also in March 2017, the appellant filed an OSC complaint in which she
alleged that the agency had failed to select her for two additional positions in
retaliation for her whistleblowing activities. 0223 IAF, Tab 40 at 13-38.
On August 31, 2017, OSC informed the appellant that it had closed its file
regarding her complaint. Doe v. Department of Veterans Affairs , MSPB Docket
No. PH-1221-17-0449-W-1, Initial Appeal File (0449 IAF), Tab 1 at 18. On
September 20, 2017, the appellant timely filed a Board appeal from OSC’s
determination and requested a hearing. 0449 IAF, Tab 1. The administrative
judge joined the two pending Board appeals. 0223 IAF, Tab 36, Tab 61 at 1-2.3
After holding a 3-day hearing regarding the joined appeals, the
administrative judge issued an initial decision denying the appellant’s request for
corrective action. 0223 IAF, Tab 93, Initial Decision (ID). The administrative
judge found that the appellant had exhausted her administrative remedies before
OSC with respect to 17 nonselections for positions advertised under the following
vacancy announcement numbers: 1176898, 1182148, 1213402, 1221475,
1223829, 1293297, 1305865, 1307416, 1325763 , 1338682, 1343574, 1588576,
1600422, 1606485, 1652067, 1704268, and 1711692. ID at 3, 13-14.
The administrative judge also found that the appellant had alleged that she made
28 disclosures; however, only 15 reasonably could be interpreted to constitute a
disclosure. ID at 7-12. According to the administrative judge, even assuming
that the remaining 15 disclosures were protected, the appellant could not show
that the disclosures were a contributing factor in the 17 nonselections.
ID at 12-30. Accordingly, the administrative judge denied the appellant’s request
for corrective action and dismissed the appeals. ID at 29-30.
The appellant has timely filed a petition for review, and the agency has
filed an opposition to the petition. Doe v. Department of Veterans Affairs ,
MSPB Docket No. PH-1221-17-0223-W-1, Petition for Review (PFR) File,
Tabs 1, 3. As set forth below, we find the appellant’s arguments on review to be
without merit.
DISCUSSION OF ARGUMENTS ON REVIEW
In order to establish a prima facie case of reprisal for whistleblowing under
the Whistleblower Protection Enhancement Act of 2012 (WPEA),3 the appellant
3 In adjudicating this matter, the administrative judge applied the WPEA. ID at 4.
She did not address that several of the appellant’s allegedly protected disclosures
occurred prior to the WPEA’s effective date of December 27, 2012; however, we find
that the WPEA applies to these joined appeals. Pub. L. No. 112-199, § 202, 126 Stat.
1465, 1476. The Board has held that, when the appellant’s protected activity occurred
before but the relevant personnel actions occurred after the WPEA’s effective date, the
WPEA should be applied because the agency knew of the parties’ rights, liabilities, and
duties under the WPEA when it acted. Pridgen v. Office of Management and Budget ,4
must prove by preponderant evidence that: (1) she made a disclosure protected
under 5 U.S.C. § 2302(b)(8) or engaged in activity protected under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) that the protected disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a).4 5 U.S.C. § 1221(e)(1);
Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). If the
appellant makes out a prima facie case, then the agency is given an opportunity to
prove, by clear and convincing evidence, that it would have taken the same
personnel action in the absence of the protected disclosure or activity. 5 U.S.C.
§ 1221(e)(2); Webb, 122 M.S.P.R. 248, ¶ 6.
2022 MSPB 31, ¶¶ 50-51. Here, although some of the alleged disclosures occurred
prior to the WPEA’s effective date, each of the nonselections at issue occurred after the
effective date, thus the WPEA should be applied in this matter.
Additionally, during the pendency of this appeal, the National Defense Authorization
Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into
law on December 12, 2017. Section 1097 of the NDAA amended various provisions of
Title 5 of the U.S. Code. Our decision to affirm this appeal would be the same under
both pre- and post-NDAA law.
4 The administrative judge did not explicitly find that the appellant established
jurisdiction in this matter. In her initial decision, the administrative judge found that
the appellant had exhausted her administrative remedies before OSC and that
15 incidents reasonably could be interpreted to constitute a disclosure. ID at 3-12.
In holding a hearing, the administrative judge implicitly found that the appellant made a
nonfrivolous allegation that she made protected disclosures that were a contributing
factor in the nonselections at issue. See Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 15 (2015) (finding that, because the administrative judge held a
hearing, he implicitly found that the appellant had established jurisdiction). On review,
neither party challenges the administrative judge’s implicit conclusion that the appellant
established the Board’s jurisdiction over this matter, nor do we discern a reason to
disturb it. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016)
(holding that, to establish Board jurisdiction over an IRA appeal brought pursuant to the
WPEA, the appellant must exhaust her administrative remedies before OSC and make
nonfrivolous allegations that: (1) she made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or activity
was a contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a)(2)(A)). 5
The administrative judge found that, of the 28 disclosures that the appellant
alleged were protected, only 15 could be reasonably interpreted to constitute a
disclosure. ID at 7-12; see 0223 IAF, Tab 1 at 24-27; 0449 IAF, Tab 1 at 5-7.
As discussed below, the administrative judge properly found that the appellant
was precluded from raising three claims of whistleblower reprisal in the instant
case. The administrative judge incorrectly found that the appellant was precluded
from raising five additional alleged disclosures in this case; however, the
appellant did not show that four of the alleged disclosures were protected and did
not exhaust administrative remedies with respect to one of the alleged
disclosures. We agree with the administrative judge that five other alleged
disclosures were not protected. Finally, the administrative judge correctly found
that the appellant did not show that the remaining 15 allegedly protected
disclosures were a contributing factor in the 17 nonselections at issue.
The administrative judge correctly found that only 15 of the appellant’s
28 alleged disclosures could constitute disclosures.
The administrative judge correctly found that the appellant was
precluded from raising three claims she raised in a prior IRA appeal.
On review, the appellant alleges that the administrative judge ignored facts
demonstrating that she made protected disclosures. PFR File, Tab 1 at 14.
In large part, however, the appellant merely restates on review that the
disclosures that she alleged below were protected and does not identify specific
errors in the administrative judge’s reasoning that 13 alleged disclosures could
not be considered by the Board or were not protected. 0223 IAF, Tab 51 at 8-12;
PFR File, Tab 1 at 10-15.
We have reviewed the administrative judge’s findings regarding the
appellant’s allegedly protected disclosures and agree that the appellant was
precluded from raising three claims in the instant case. ID at 2 nn.1-2, 8.
The administrative judge found that the appellant alleged that her September 2010
resignation, the October 2014 convention of an NPSB, and her November 20146
probationary termination constituted protected disclosures, but that none of the
three incidents are disclosures protected under 5 U.S.C. § 2302(b)(8) or activity
protected under the applicable provisions of 5 U.S.C. § 2302(b)(9). ID at 7-8.
Moreover, as explained by the administrative judge, to the extent that the
appellant alleges that these three incidents constitute personnel actions that the
agency took in retaliation for the protected disclosures raised in her prior OSC
complaints, the appellant is precluded from raising them in the instant
proceedings. 0223 IAF, Tab 18, Tab 61 at 1-2, ID at 2 nn.1-2, 8. In a prior IRA
appeal, the appellant alleged that the three above-referenced actions occurred in
retaliation for disclosures that are identical to those raised in the instant appeal.
Compare Doe v. Department of Veterans Affairs , MSPB Docket No. PH -1221-
17-0115-W-1, Initial Appeal File (0115 IAF), Tab 1 at 8-12, 17-19, with 0223
IAF, Tab 1 at 24-27. In the prior IRA appeal, the appellant acknowledged that
her appeal was untimely, and the administrative judge assigned to the case
dismissed it as untimely filed; this initial decision became final on February 9,
2017, when neither party appealed it.5 0115 IAF, Tab 4 at 3-4, Tab 9. Here, the
appellant does not challenge the administrative judge’s finding that the appellant
is precluded from relitigating these three claims in the instant case, and we
discern no reason to disturb it. See Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative
judge’s findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
5 The appellant also appeared to admit that an appeal of her September 2010 resignation
was precluded by a December 2010 settlement agreement. 0115 IAF, Tab 4 at 3;
see 0223 IAF, Tab 17 at 15-16. Because we agree with the administrative judge that the
appellant is precluded from relitigating the September 2010 resignation in the instant
appeal based on her prior IRA appeal, we do not make any findings regarding whether
the appellant is precluded from appealing the resignation under the settlement
agreement.7
The administrative judge incorrectly found that the appellant was
precluded from raising five alleged disclosures in the instant case;
however, the appellant did not show that four of the alleged
disclosures were protected and did not exhaust administrative
remedies with respect to the remaining alleged disclosure.
The administrative judge found that the appellant alleged that certain
communications with OSC were protected, including the following: OSC’s
issuance of an October 2014 preliminary determination regarding a prior
whistleblower retaliation claim; her disclosure to OSC in November 2014 that she
had been terminated in retaliation for whistleblowing; OSC’s issuance of a
November 2014 closure notice regarding a prior OSC complaint; and OSC’s
issuance of a January 2015 determination letter regarding a prior OSC complaint.
0223 IAF, Tab 1 at 26-27; ID at 8. The administrative judge incorrectly stated
that the appellant could not raise these disclosures in the instant matter because
they were raised in the prior IRA appeal that was dismissed as untimely. ID at 8.
We modify the initial decision to find that, to the extent that the appellant is
alleging that these allegations reflect that she made a protected disclosure that
was a contributing factor in a personnel action not previously adjudicated by the
Board, such as the 17 nonselections at issue here, she is raising a new claim of
reprisal for whistleblowing that she may bring before the Board, so long as she
exhausted her administrative remedies before OSC by raising the claim in the
OSC complaint from which she appealed in the instant case. See Groseclose v.
Department of the Navy , 111 M.S.P.R. 194, ¶ 29 (2009) (finding that the
appellant was not barred from raising claims that alleged that new personnel
actions were taken in retaliation for allegedly protected disclosures raised in his
prior IRA appeal); Becker v. Department of Veterans Affairs , 76 M.S.P.R. 292,
298 n.3 (1997) (observing that, when an appellant has filed multiple complaints
with OSC, exhaustion may only be demonstrated through the complaint that led to
the filing of the IRA appeal before the Board). Here, however, three of the
alleged disclosures pertain to actions that OSC took and cannot be construed to be8
protected disclosures on the appellant’s part. 0223 IAF, Tab 1 at 26-27.
Additionally, the appellant does not allege that her disclosure to OSC regarding
her 2014 probationary termination was a contributing factor in any of her
nonselections and appears to have included these facts regarding OSC solely as
background information.6 Id.
The administrative judge also detailed the appellant’s allegation that she
filed a report of contact and a grievance regarding an allegedly illegal search
performed by agency police and concluded that she was precluded from raising
these issues because they were raised in a prior OSC complaint. ID at 9. As set
forth above, the appellant was not precluded from alleging that she made such a
disclosure, or engaged in protected activity, if she had alleged that it was a
contributing factor in the nonselections at issue and thus raised a new claim of
reprisal for whistleblowing. However, there is no evidence that the appellant
raised the issue of her July 2014 report of contact and grievance as a protected
disclosure or activity in conjunction with either of the OSC complaints at issue in
this matter; thus, she failed to exhaust administrative remedies with respect to
this claim in the instant case. 0223 IAF, Tab 1 at 9-32, Tab 40 at 13-38;
0449 IAF, Tab 1 at 14-18; see Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶¶ 10-11.
The administrative judge correctly found that five alleged
disclosures were not protected.
As discussed by the administrative judge, the appellant’s assertions that she
was traumatized by the September 2010 death of a patient, that the agency
omitted information from her in a January 2015 report, that Senator Ayotte’s
office staff communicated with her, and that the Manchester VAMC responded to
Senator Ayotte, do not constitute protected disclosures or activity on the
appellant’s part. ID at 8-9. Additionally, the appellant’s assertion that she
6 Similarly, the appellant has not alleged that her disclosure to OSC constituted
protected activity under 5 U.S.C. § 2302(b)(9)(C) that was a contributing factor in any
of her nonselections. See 0223 IAF, Tab 1 at 26-27. 9
entered into a December 2010 settlement agreement does not constitute a
protected disclosure, as discussed by the administrative judge, nor does it
constitute protected activity, as the appellant sought to remedy a violation of
Title VII in entering into the settlement agreement. 0223 IAF, Tab 1 at 25,
Tab 17 at 15-16; ID at 8. Title VII-related claims are excluded from protections
under the whistleblower protection statutes at issue in this case. See Edwards v.
Department of Labor , 2022 MSPB 9, ¶¶ 10-23, aff’d, No. 2022-1967, 2023 WL
4398002 (Fed. Cir. July 7, 2023).
Regarding the remaining 15 allegedly protected disclosures, the
administrative judge did not rule as to whether the disclosures were in fact
protected. Rather, the administrative judge described the 15 alleged disclosures
and found that, assuming that the disclosures were protected, the appellant did not
show that the disclosures were a contributing factor in the 17 nonselections at
issue. ID at 9-30. Because we find that the administrative judge correctly found
that the appellant did not show that any of the allegedly protected disclosures
were a contributing factor in the nonselections at issue, we need not determine
whether the appellant showed by preponderant evidence that each alleged
disclosure was protected.
The administrative judge correctly found that the appellant failed to show that her
remaining 15 allegedly protected disclosures were a contributing factor in the
17 nonselections at issue in this matter.
The administrative judge correctly found that, assuming that the appellant’s
remaining 15 alleged disclosures were protected, she could not show that her
disclosures were a contributing factor in her nonselections. ID at 12-30.
A protected disclosure is a contributing factor if it in any way affects an agency’s
decision to take, or fail to take, a personnel action. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is
the knowledge/timing test. Wadhwa v. Department of Veterans Affairs ,
110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under that10
test, an appellant can prove the contributing factor element through evidence
showing that the official taking the personnel action knew of the disclosure and
that the personnel action occurred within a period of time such that a reasonable
person could conclude that the disclosure was a contributing factor in the
personnel action. Id. An appellant also may satisfy the knowledge prong of the
knowledge/timing test by proving that the official taking the action had
constructive knowledge of the protected disclosure, even if the official lacked
actual knowledge. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014).
An appellant may establish constructive knowledge by showing that an individual
with actual knowledge of the disclosure influenced the official accused of taking
the retaliatory action. Id.; see Staub v. Proctor Hospital , 562 U.S. 411, 415-16
(2011) (adopting the term “cat’s paw” to describe a case in which a particular
management official, acting because of an improper animus, influences an agency
official who is unaware of the improper animus when implementing a personnel
action).
As discussed below, the appellant’s challenges to the administrative
judge’s findings that her 15 alleged disclosures were not a contributing factor in
17 nonselections are without merit. The appellant does not dispute the
administrative judge’s findings that her alleged disclosures were not a
contributing factor in her nonselection for vacancy announcement numbers
1176898, 1223829, 1293297, 1343574, and 1704268. She has not shown that the
October 2014 NPSB or November 2014 probationary termination constituted
retaliatory actions that were improperly considered in her nonselection for
vacancy announcement numbers 1182148 and 1213402. She also fails to show
that the Manchester VAMC director influenced the selection decision for vacancy
announcement number 1307416. Next, the appellant’s arguments that the
Manchester VAMC Human Resources Officer (HRO) was aware of her alleged
disclosures and improperly influenced the selection decision for vacancy
announcement number 1588576 are without merit. She also fails to show that her11
salary determination essay informed the selecting official for vacancy
announcement numbers 1600422 and 1711692 of her alleged disclosures.
Further, the appellant has not shown that the selecting official for vacancy
announcement number 1325763 became aware of her alleged disclosures through
his involvement in an administrative investigation board (AIB) at
Manchester VAMC or that her email correspondence with the selecting official
for vacancy announcement numbers 1652067 and 1606485 informed the official
of her alleged disclosures. Finally, the appellant’s arguments that witnesses were
not credible, such that her alleged disclosures should be considered a contributing
factor in her nonselection for vacancy announcement numbers 1652067, 1221475,
and 1338682, are unpersuasive. Accordingly, we affirm the administrative
judge’s finding that the appellant did not establish the contributing factor element
of her IRA appeal.
The administrative judge properly concluded that the appellant did
not show that her alleged disclosures were a contributing factor in
her nonselection for vacancy announcement numbers 1176898,
1223829, 1293297, 1343574, 1704268, 1182148, and 1213402.
On review, the appellant does not challenge the administrative judge’s
findings that she did not show that her alleged disclosures were a contributing
factor in her nonselection for vacancy announcement numbers 1176898, 1223829,
1293297, 1343574, and 1704268. ID at 14-26. We discern no reason to disturb
the administrative judge’s well-reasoned findings with respect to these
nonselections. See Clay, 123 M.S.P.R. 245, ¶ 6.
The appellant renews her argument that her first-level supervisor at
Manchester VAMC called for an NPSB and provided records and testimony to the
NPSB in retaliation for the appellant’s prior equal employment opportunity
(EEO) activity and disclosures. PFR File, Tab 1 at 5, 7, 15-16. As set forth
above, the administrative judge properly found that the appellant is precluded
from raising a claim that the NPSB, and her resulting probationary termination,
constituted personnel actions taken in retaliation for her protected disclosures.12
ID at 2 nn.1-2, 8. Accordingly, to the extent that the appellant argues that the
NPSB itself was retaliatory and resulted in her nonselections for those positions
advertised under vacancy announcement numbers 1182148, 1213402,
and 1588576, the appellant has not demonstrated that the NPSB and termination
constituted retaliatory actions and were thus improperly considered in the
selecting officials’ decisions not to select her for the positions. PFR File, Tab 1
at 5, 7, 15-16. The appellant does not otherwise challenge the administrative
judge’s findings that the selecting officials for the positions advertised under
vacancy announcement numbers 1182148 and 1213402 did not have actual or
constructive knowledge of the appellant’s alleged disclosures, and that there was
no other evidence that her disclosures were a contributing factor in these
nonselections, thus we discern no reason to disturb the administrative judge’s
findings. ID at 27-29; see Clay, 123 M.S.P.R. 245, ¶ 6. We discuss the
appellant’s other arguments regarding vacancy announcement number 1588576
below.
The appellant has not shown that the Manchester VAMC director
influenced the selection decision for vacancy announcement
number 1307416.
On review, the appellant argues that the administrative judge ignored
evidence of the Manchester VAMC director’s knowledge of her protected
activity. PFR File, Tab 1 at 14-16. The appellant argues that “[i]t is reasonable
to assume that” the Manchester VAMC director learned of the appellant’s role in
disclosing the circumstances surrounding the September 17, 2010 death of a
veteran through her involvement in agency police’s discovery of the appellant’s
past work location and prior last name. Id. at 11. The appellant also contends
that the Manchester VAMC director’s work at an agency facility in
Bedford, Massachusetts, overseeing Togus VAMC, increased the likelihood that
she was aware of the appellant’s disclosure. Id. at 11-13. Finally, the appellant
argues that the administrative judge ignored the fact that, on August 15, 2014,13
she disclosed to the Manchester VAMC director that she was not trained to handle
a suicidal veteran that came to her with no mental health care provider available.7
Id. at 12, 14-15. Regardless of whether the Manchester VAMC director was
aware of the appellant’s alleged disclosures, there is no evidence that the director
influenced any of the selection decisions at issue, as discussed below.
The appellant argues that the former associate director at White River
Junction VAMC learned from the Manchester VAMC director of the appellant’s
prior EEO activity at Manchester VAMC and that the former White River
Junction VAMC associate director then influenced the selecting official at White
River Junction VAMC to not interview the appellant for the position available
under vacancy announcement number 1307416. Id. at 8-9; see 0223 IAF, Tab 33
at 13-14. As set forth above, Title VII-related claims are excluded from
protections under the whistleblower protection statutes, thus this allegation is not
relevant to the issue of whether any of the appellant’s alleged disclosures were a
contributing factor in the nonselection. See Edwards, 2022 MSPB 9, ¶¶ 10-23.
The record supports the administrative judge’s finding that the selecting official
for this vacancy did not speak with anyone regarding the appellant, including the
former White River Junction VAMC associate director, and was unaware of the
appellant’s protected disclosures. 0223 IAF, Tab 76, Hearing Recording 1 ( HR 1)
(testimony of the selecting official for vacancy announcement number 1307416),
ID at 19. Accordingly, the appellant has not shown that her protected disclosures
were a contributing factor in her nonselection for this position.
7 As discussed above, to the extent that the appellant alleges that her grievance
regarding the agency police search and bullying incident was protected activity, the
appellant failed to exhaust administrative remedies with OSC regarding the grievance.
0223 IAF, Tab 1 at 9-30, Tab 40 at 13-38. Similarly, there is no evidence that the
appellant exhausted her administrative remedies before OSC, with respect to the
August 15, 2014 alleged disclosure, in conjunction with the OSC complaints relevant to
this case. 0223 IAF, Tab 1 at 9-30, Tab 40 at 13-38. Accordingly, we have considered
these allegations only to the extent that the appellant contends that they show that the
15 alleged disclosures she exhausted before OSC were a contributing factor in the 17
nonselections.14
The appellant did not show that the Manchester VAMC Human
Resources Officer was aware of her alleged disclosures and
improperly influenced the selection decision for vacancy
announcement number 1588576.
The appellant argues that she was not selected for positions only because
the Manchester VAMC HRO was aware of her protected disclosures and made
“retaliatory and discriminatory referrals” to selecting officials. PFR File, Tab 1
at 5, 15. The administrative judge found that, following the issuance of a
tentative offer to the appellant for the position advertised under vacancy
announcement number 1588576, the Senior Human Resources Specialist for the
Chief Business Office (SHRS) contacted the Manchester VAMC HRO for
information regarding the appellant’s employment at Manchester VAMC.
ID at 20. The Manchester VAMC HRO read to the SHRS the NPSB’s summary
of its recommendations, and the SHRS wrote down the findings and relayed them
to the selecting official and the Northeast Consolidated Patient Account Center
(NECPAC) director. ID at 20-21. The selecting official then recommended that
the appellant’s tentative offer be rescinded, and the NECPAC director concurred;
subsequently, the appellant’s tentative offer was rescinded. ID at 21.
The administrative judge observed that the Manchester VAMC HRO became
aware of a congressional inquiry regarding the appellant but did not discuss any
disclosures with anyone. ID at 20-21. She also found that the SHRS did not
inform the selecting official or NECPAC director of any disclosures or otherwise
influence their decision. ID at 21. Finally, she found that the agency advanced a
legitimate reason for rescinding the offer. ID at 21-22.
We modify the administrative judge’s analysis of whether the selecting
official and the NECPAC director had constructive knowledge of the appellant’s
disclosures to clarify that the proper inquiry is whether an individual with actual
knowledge of the disclosure influenced the official accused of taking the
retaliatory action. Nasuti, 120 M.S.P.R. 588, ¶ 7. Such influence does not
require the individual to actually inform the official of the disclosure.15
See Aquino v. Department of Homeland Security , 121 M.S.P.R. 35, ¶¶ 20-21
(2014) (affirming the administrative judge’s decision to impute knowledge of the
appellant’s disclosures to the proposing and deciding official in his removal
where the appellant’s supervisor learned of the appellant’s disclosure and
reported concerns about the quality of his performance to upper management a
few days later). The issue here is whether the Manchester VAMC HRO was
aware of the appellant’s disclosures and improperly influenced the SHRS, who in
turn influenced the selecting official and the NECPAC director.
It is undisputed that the Manchester VAMC HRO was aware that the NPSB
convened and recommended terminating the appellant, but the record does not
reflect that he was aware of any of the appellant’s alleged disclosures as a result
of his involvement with the NPSB. HR 1 (testimony of the Manchester VAMC
HRO and the Manchester VAMC director). The Manchester VAMC HRO
testified that he was aware of an inquiry from Senator Ayotte but could not
remember what it was about and whether he became aware of it before or after he
received two calls regarding the appellant from NECPAC. Id. (testimony of the
Manchester VAMC HRO). The record reflects that the Manchester VAMC
responded to Senator Ayotte’s inquiry in February 2016, two months prior to the
SHRS’s April 2016 call to the Manchester VAMC HRO. 0223 IAF, Tab 34 at 14.
The response referenced the Senator’s inquiry into the appellant’s termination and
that the appellant was informed of her right to file a complaint if she believed the
termination was based on discrimination because of race, color, religion, national
origin, age, or disability. Id. The response also referred the Senator to the
Manchester VAMC HRO for any further questions. Id. The record thus reflects
that the Manchester VAMC HRO was aware of the Senator’s inquiry on the
appellant’s behalf prior to the SHRS’s call.
However, the record does not suggest that the Manchester VAMC HRO was
aware that the appellant had made any protected disclosures to the Senator’s
office. The content of the inquiry the Senator sent to the agency is not in the16
record, and the agency’s response only references the appellant’s termination and
an allegation of discrimination, neither of which can be construed to constitute
protected activity under the WPEA. Accordingly, the appellant did not show that
the Manchester VAMC HRO was aware of her alleged disclosures, thus there is
no basis upon which to conclude that the Manchester VAMC HRO improperly
influenced the SHRS or the selecting official for the vacancy. The appellant does
not argue that the selecting official or the NECPAC director had actual
knowledge of the appellant’s alleged disclosures, and, as discussed below, there
is no evidence that the SHRS was aware of the disclosures. Accordingly, the
appellant has not shown that her protected disclosures were a contributing factor
in this nonselection.
The appellant did not show that her salary determination essay
informed the selecting official for vacancy announcement numbers
1600422 and 1711692 of her alleged disclosures.
The appellant argues that the selecting official for vacancy announcement
numbers 1600422 and 1711692 was aware of her disclosures because she
accessed the appellant’s “9 dimensions” salary determination essay and thus
rescinded the job offer for vacancy 1588576. PFR File, Tab 1 at 14. There is no
evidence that the selecting official for vacancy announcement numbers 1600422
and 1711692 was involved in the selection for vacancy announcement number
1588576. To the extent that the appellant argues that the SHRS was aware of her
protected disclosures because he reviewed the appellant’s essay, we find her
arguments unpersuasive. See id. at 13-14.
The administrative judge did not address the essay in her analysis of the
SHRS’s knowledge of the appellant’s protected disclosures. The record reflects
that, after the appellant received a tentative offer, the SHRS requested that the
appellant explain her experience within each of the Dimensions of Nursing and
return her explanation to him for provision to a nurse professional standards
board to determine her starting salary. 0223 IAF, Tab 5 at 32-33. The SHRS17
acknowledged that he most likely received the appellant’s response but did not
read it because it was to go to the board. 0223 IAF, Tab 54 at 19-27, Tab 92,
Hearing Recording 3 ( HR 3) (testimony of the SHRS). Even if the SHRS read the
document, it is insufficient to notify him that the appellant had made protected
disclosures. In the document, the appellant discusses the September 17, 2010
death of a veteran but describes her role as an “advocate for nurses working
w[ith] staffing shortages, attempting to follow organizational policy and
procedures for documentation, and attempting to instill a moral compass in a vast
healthcare setting.” 0223 IAF, Tab 54 at 21. Additionally, the appellant
describes an August 12, 2014 incident with a suicidal veteran. Id. Nothing in the
description of these incidents suggests that the appellant disclosed wrongdoing
about the veteran’s death.
The appellant did not show that the selecting official for vacancy
announcement number 1325763 learned of her alleged disclosures
because of his involvement in an administrative investigation board
at Manchester VAMC.
The appellant also argues that the selecting official for vacancy
announcement number 1325763 was aware of her prior EEO and whistleblower
activities through the AIB that he conducted at the Manchester VAMC director’s
request. PFR File, Tab 1 at 14-15. She alleges that, despite this knowledge, the
selecting official invited her to interview for a position but did not select her for
the position. Id. The administrative judge found that the appellant applied for,
and was interviewed for, an RN (Care Manager) position in the Fitchburg
Outpatient Clinic, advertised under vacancy announcement number 1325763,
but was not selected for the position. ID at 17-18. One of the three selection
panel members also served as one of two fact -finders tasked with conducting a
January 2015 AIB at Manchester VAMC regarding incidents involving the
appellant’s former first -level supervisor at Manchester VAMC. HR 1 (testimony
of the panelist for vacancy announcement number 1325763). Although the
appellant contended that she requested to be interviewed for the AIB,18
the administrative judge found credible the panelist’s testimony that he was given
a list of employees who wanted to be interviewed, and that he was unaware that
the appellant was one of her former first-level supervisor’s subordinates,
particularly because the appellant had been terminated prior to the initiation of
the investigation. ID at 18-19. She also found his testimony credible that he was
unaware of the appellant’s history at Manchester VAMC. ID at 19. On review,
the appellant does not identify any specific error in the administrative judge’s
findings, and we discern no reason to disturb them.
The appellant has not shown that her email correspondence with the
selecting official for vacancy announcement numbers 1652067 and
1606485 informed the selecting official of her alleged disclosures.
Next, the appellant argues that, after she sent the Nurse Manager of
Recruitment and Staffing at Lebanon VAMC a statement reflecting her protected
activity, she was not selected for the position advertised under vacancy
announcement number 1652067. PFR File, Tab 1 at 15. The administrative judge
found that neither management official on the selection panel was aware of the
appellant’s alleged disclosures. ID at 22-23. However, in her analysis for this
vacancy, the administrative judge did not address that the appellant had sent the
Nurse Manager of Recruitment and Staffing a March 31, 2016 email that the
appellant alleged contained protected disclosures, and that she was notified that
she was not selected for the position on April 27, 2016.8 0223 IAF, Tab 5
at 39-40, Tab 54 at 30-31.
In her March 31, 2016 email, the appellant stated that she “[w]as bullied by
co-workers and attacked by a co-worker for [her] race,” and in retaliation for
reporting the racially motivated bullying or attack to the police and
Manchester VAMC officials, her supervisor brought her before an NPSB, and the
agency terminated her due to false information placed in her file by the
8 The administrative judge did address this email with respect to another vacancy,
however, and concluded that the email did not reference the appellant’s whistleblowing
activities. ID at 23-24. 19
individuals who bullied her. 0223 IAF, Tab 54 at 30-31. The appellant’s
allegations fall squarely within the confines of Title VII and are excluded from
whistleblower protection statutes.9 See Edwards, 2022 MSPB 9, ¶¶ 10-23.
Accordingly, we find that the appellant’s March 31, 2016 email does not
constitute a protected disclosure, and thus, we agree with the administrative judge
that the Nurse Manager of Recruitment and Staffing was not aware of the
appellant’s protected disclosures, nor was she influenced by anyone with actual
knowledge of the disclosures. ID at 22-23. With respect to vacancy
announcement number 1606485, we agree with the administrative judge that the
appellant sent the March 31, 2016 email to the Nurse Manager of Recruitment and
Staffing after she was notified of her nonselection on March 18, 2016, thus it
could not have been a contributing factor in her nonselection. ID at 23-24;
Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015)
(stating that a disclosure that occurs after the personnel action at issue was taken
cannot be considered a contributing factor in that personnel action).
The appellant’s arguments regarding witnesses’ lack of credibility
do not warrant finding that her alleged disclosures were a
contributing factor in the selection decisions for vacancy
announcement numbers 1652067, 1221475, and 1338682.
The appellant argues that the testimony of several witnesses was not
credible. First, the appellant argues that all of the selecting officials who testified
during the hearing regarding positions to which the appellant applied in
Pennsylvania testified that the appellant was not qualified, and that their
testimony is not credible because they identified the appellant by her actual name,
rather than the name she used to apply for the positions to protect her identity.
PFR File, Tab 1 at 4-5. Of the 10 positions located in Pennsylvania for which the
9 To the extent that the appellant alleges that she disclosed in her March 31, 2016 email
that she was bullied by coworkers for reasons other than her race, the email contains no
details or specifics regarding the bullying. 0223 IAF, Tab 54 at 30-31. An allegation
of bullying, without more information, is too vague to constitute a protected disclosure.
See Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 6 (stating that disclosures
must be specific and detailed, not vague allegations of wrongdoing). 20
appellant applied, the selecting officials for 5 positions, advertised under vacancy
announcement numbers 1305865, 1600422, 1606485, 1652067, and 1711692,
testified. HR 1 (testimony of the Nurse Manager, Behavioral Health Unit,
Lebanon VAMC), HR 3 (testimony of the selecting officials for vacancy
announcement numbers 1305865, 1600422, 1606485, and 1711692, and the
Nurse Manager, Recruitment and Staffing, Lebanon VAMC).10 Of those selecting
officials, only the Nurse Manager of the Behavioral Health Unit at Lebanon
VAMC, one of the interview panelists for vacancy announcement number
1652067, testified that she knew the appellant by her actual name. HR 1
(testimony of the Nurse Manager, Behavioral Health Unit, Lebanon VAMC). The
appellant did not question the witness further on this issue but generally noted it
in her closing argument. Id. (testimony of the Nurse Manager, Behavioral Health
Unit, Lebanon VAMC), HR 3 (the appellant’s closing argument). The
administrative judge nevertheless found this witness’ testimony credible. ID
at 22-23.
The Board must defer 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. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline
to defer to an administrative judge’s credibility findings that are abbreviated,
based on improper considerations, or unsupported by the record, Redschlag v.
Department of the Army , 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an
administrative judge’s demeanor-based credibility findings merely because it
disagrees with those findings, Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367, 1372 (Fed. Cir. 2016) (quoting Haebe, 288 F.3d at 1299).
Although the administrative judge did not mention considering this issue in
assessing the witness’ credibility, her failure to mention all of the evidence of
10 The administrative judge found that the interview panelists for vacancy
announcement number 1652067 each recalled that the other was the designated
selecting official. ID at 22-23. 21
record does not mean that she did not consider it in reaching her decision.
Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). This issue is not one that
warrants overturning the administrative judge’s well-reasoned finding that this
particular selecting official was credible.
The appellant also argues that the selecting official for vacancy
announcement number 1221475 testified that the appellant did not have primary
care experience and that this testimony is false. PFR File, Tab 1 at 7.
However, the administrative judge found that the selecting official testified that
she was not aware of the appellant’s whistleblowing activity, did not recognize
the names of agency employees aware of the activity, and was not contacted by
anyone regarding the appellant’s application for the position, and that the
appellant did not refute this testimony. HR 1 (testimony of the selecting official
for vacancy announcement number 1221475); ID at 15. The appellant does not
dispute these findings on review. The record reflects that the administrative
judge properly concluded that the selecting official for this position did not have
actual or constructive knowledge of the appellant’s alleged disclosures, thus the
appellant did not show that her disclosures were a contributing factor in her
nonselection for the position. ID at 15.
The appellant further argues that the Human Resources Specialist who
testified regarding the selection process for vacancy announcement
number 1338682 is not credible because, contrary to her testimony, Article 23 of
the Master Agreement “says nothing about referring the internal candidates to the
selecting official first” and that her testimony that the appellant was not referred
because she was an external candidate must be disregarded. PFR File, Tab 1 at 6.
The administrative judge found that the Master Labor Agreement in effect for the
relevant facility provided that the agency was required to first consider internal
candidates for vacant RN positions, and we agree. ID at 16. Article 23,
Section 8(B) of the Master Labor Agreement between the agency and its22
exclusive bargaining representative provides that, “Prior to considering
candidates from outside the bargaining unit, the Department agrees to first
consider internal candidates for selection.” 0223 IAF, Tab 79 at 18.
The appellant’s argument is without merit.
Next, the appellant argues that the testimony of one of the selecting
officials at Lebanon VAMC that the appellant did not have enough mental health
experience is false because the appellant worked in the Mental Healthcare unit in
Manchester VAMC. PFR File, Tab 1 at 7. The appellant does not identify which
selecting official so testified or cite to the record in support of her argument. Id.
We find this argument too vague to warrant reversal of the initial decision.
Finally, the appellant argues that she was better qualified than all of the
selectees for the vacancies at issue and that her probationary termination did not
disqualify her from being interviewed and hired. Id. at 5-6. Given the
administrative judge’s well-reasoned findings that the selecting officials for the
positions at issue were not aware of her alleged disclosures and credibly testified
to legitimate reasons for their decisions not to select her, her arguments are
unpersuasive.
The appellant has not shown that the administrative judge erred in denying her
motion to compel the production of certain documents or in denying her request
for certain witnesses to testify.
On review, the appellant argues that the administrative judge erred in
denying her motion to compel the agency to produce requested documents.
PFR File, Tab 1 at 4. An administrative judge has broad discretion in ruling on
discovery matters and, absent a showing of an abuse of discretion, the Board will
not find reversible error in such rulings. Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365, ¶ 16 (2016). Here, the appellant appears to be referring to the
administrative judge’s denial of her motion to compel the agency to identify the
location of documents responsive to her requests for the production of documents
in the agency file. 0223 IAF, Tab 21 at 3, Tab 23. In denying the appellant’s23
motion to compel, the administrative judge noted that the agency had organized
the agency file by each nonselection at issue and that the appellant had not cited a
regulation requiring the agency to respond to her requests in the manner she
desired. 0223 IAF, Tab 23. On review, the appellant has not articulated a basis
for her continued assertion that the administrative judge erred in denying her
motion to compel, and the record does not reflect that the administrative judge’s
ruling constituted an abuse of discretion; thus, we decline to reverse it.
The appellant also argues that the administrative judge erred in denying her
requests to call the initial selecting official for vacancy announcement number
1588576 as a rebuttal witness. 0223 IAF, Tab 85; PFR File, Tab 1 at 9.
An administrative judge has wide discretion to exclude witnesses where it has not
been shown that their testimony would be relevant, material, and nonrepetitious.
Fox v. Department of the Army , 120 M.S.P.R. 529, ¶ 42 (2014). The appellant
asserts that the Manchester VAMC HRO read to the initial selecting official the
NPSB’s recommendation and that the initial selecting official then rescinded the
tentative offer made to the appellant for the position advertised under vacancy
announcement number 1588576. PFR File, Tab 1 at 9. However, the
administrative judge found that the Manchester VAMC HRO read the NPSB’s
recommendation to SHRS, not to the initial selecting official. ID at 20-21.
The administrative judge also found that the initial selecting official made the
original selection that resulted in a tentative offer to the appellant, but that she
changed jobs, and her replacement subsequently learned of the NPSB’s
recommendation from the SHRS and recommended rescinding the appellant’s
offer. Id. The record, which includes testimony from the SHRS on the subject, is
consistent with the administrative judge’s findings. 0223 IAF, Tab 9 at 61-63,
HR 1 (testimony of the NECPAC director and the Manchester VAMC HRO),
HR 3 (testimony of the SHRS). The appellant does not point to any evidence that
contradicts the administrative judge’s findings or identify how the initial
selecting official’s testimony would have been relevant to the nonselection.24
Thus, we find no abuse of discretion in the administrative judge’s ruling.
See Fox, 120 M.S.P.R. 529, ¶ 42.
Finally, the appellant argues that the administrative judge erred in denying
the appellant’s request to call the selecting official for vacancy announcement
numbers 1600422 and 1711692 in her case-in-chief and only allowing her to
testify on rebuttal. 0223 IAF, Tab 61 at 4, Tab 85 at 1; PFR File, Tab 1 at 14.
She contends that this selecting official was aware of her disclosure of the
September 2010 death of a veteran and, with advice from the Manchester VAMC
director and the SHRS, rescinded the appellant’s offer for the position advertised
under vacancy announcement number 1588576. PFR File, Tab 1 at 14.
The record does not reflect that this selecting official was involved with vacancy
announcement number 1588576; moreover, this selecting official testified that
she did not speak with anyone at NECPAC or Manchester VAMC regarding the
appellant, nor was she aware that the appellant had been terminated from
Manchester VAMC. HR 3 (testimony of the selecting official for vacancy
announcement numbers 1600422 and 1711692); ID at 24-25. The appellant does
not explain what additional testimony this selecting official would have provided
in her case-in-chief rather than on rebuttal. Our review of the record reflects no
abuse of discretion in the administrative judge’s ruling limiting this selecting
official’s testimony to rebuttal.
Accordingly, we affirm the administrative judge’s conclusion that the
appellant failed to prove that her alleged disclosures were a contributing factor in
her nonselections and affirm the initial decision denying her request for
corrective action as modified herein. We vacate the administrative judge’s
dismissal of the request for corrective action, as dismissal is inappropriate where
the appeal is denied on the merits. See ID at 30. 25
NOTICE OF APPEAL RIGHTS11
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:
11 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.26
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 any27
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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’s28
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must 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.
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 29
Contact information for the courts of appeals can be 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.30 | Doe_JohnPH-1221-17-0223-W-1_and_PH-1221-17-0449-W-1_Final_Order.pdf | 2024-07-30 | null | PH-2 | NP |
826 | https://www.mspb.gov/decisions/nonprecedential/Nielsen_Norma_SF-1221-18-0233-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NORMA NIELSEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-18-0233-W-2
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nini Stewart , Esquire, Atlanta, Georgia, for the appellant.
Bende Toth , San Francisco, California, for the appellant.
Michael L. Halperin , Esquire, and Aisha Richey , Esquire, Monterey,
California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appeal. 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’s
finding that the appellant proved that she made whistleblowing disclosures which
were a contributing factor in the agency’s decision to terminate her. We
MODIFY the analysis in the initial decision regarding the factors set forth in Carr
v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999), still
finding that the agency proved by clear and convincing evidence that it would
have terminated the appellant absent her whistleblowing disclosures.
BACKGROUND
On August 8, 2016, the appellant began an excepted service term
appointment with the agency as an Assistant Professor, with a not-to-exceed date
of August 9, 2017. Nielsen v. Department of the Army , MSPB Docket
No. SF-1221-18-0233-W-1, Initial Appeal File (IAF), Tab 10 at 64. The position
was at the agency’s Defense Language Institute (DLI), European and Latin
American Language School, located in Monetary, California. Id. The appellant’s
first-level supervisor was J.B., Spanish Language Department Chair, and her
second-level supervisor was H.S., Dean of the European and Latin American2
Language School. IAF, Tab 22 at 7. B.L. was the Provost of DLI. IAF, Tab 16
at 11. The appellant’s term appointment was under a 1-year trial period and the
agency reserved the right to terminate her appointment with a 7-day advanced
notice period. IAF, Tab 10 at 62; see 5 C.F.R. § 316.304.
Effective March 28, 2017, the agency terminated the appellant’s
appointment during her trial period, alleging that she failed to follow instructions,
went outside of the chain of command, did not accept opportunities provided to
her, and displayed unprofessional and disrespectful behavior through emails and
in-person communications.2 IAF, Tab 1 at 26-27, Tab 10 at 20. Following the
receipt of her termination notice, the appellant filed a complaint requesting
corrective action from the Office of Special Counsel (OSC), claiming that the
termination was in reprisal for her whistleblowing disclosures. IAF, Tab 1 at 8-
25. After OSC closed its investigation into the appellant’s complaint with no
further action, she timely filed this IRA appeal with the Board. Id. at 8.
After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. Nielsen v. Department of
the Army, MSPB Docket No. SF-1221-18-0233-W-2, Appeal File, Tab 6,
Initial Decision (ID) at 1-43. The administrative judge found that the appellant
made whistleblowing disclosures regarding being instructed to inflate student
grades, to J.B. on February 8, 2017, to H.S. on March 8, 2017, to J.B. and H.S. on
March 9, 2017, to B.L. on March 17, 2017, and to the agency’s Office of the
Inspector General (OIG) on March 21, 2017. ID at 28-31. These whistleblowing
disclosures were found to be a contributing factor in the termination. ID at 31.
The administrative judge then found that the appellant made a whistleblowing
disclosure on March 1, 2017, to H.S., J.B., A.B., A.S., and P.D. regarding being
incorrectly told by J.B. that she could not appeal her Initial Course Certification
2 The agency issued the appellant her termination notice on March 21, 2017, complying
with the 7-day advanced notice period. IAF, Tab 1 at 26, Tab 10 at 62.3
(ICC) result.3 ID at 34. This disclosure, too, was found to be a contributing
factor in the termination. Id. Lastly, the administrative judge determined that the
agency proved by clear and convincing evidence that it would have terminated the
appellant’ appointment even absent her whistleblowing disclosures. ID at 37-42.
The appellant filed a petition for review contesting the initial decision,
challenging some of the administrative judge’s credibility determinations from
the hearing, and disputing the Carr factor analysis. Petition for Review (PFR)
File, Tab 1, Tab 4 at 22-29. The appellant does not appear to be challenging any
other findings from the initial decision. PFR File, Tabs 1, 4. The agency
responded to the appellant’s petition for review, to which the appellant filed a
reply. PFR File, Tabs 7-8.
ANALYSIS4
In order to prevail on the merits of an IRA appeal, an appellant must prove
by preponderant evidence that she made a whistleblowing disclosure as described
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take
a personnel action outlined in 5 U.S.C. § 2302(a).5 5 U.S.C. § 1221(e)(1);
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. If an appellant meets her burden, then the Board shall order
corrective action unless the agency shows by clear and convincing evidence that
3 In the initial decision, the administrative judge found that the appellant did not prove
that she made whistleblowing disclosures concerning general irregularities in the ICC
process and she did not prove that she made whistleblowing disclosures regarding a
hostile work environment. ID at 32-37. On review, the appellant does not take issue
with these findings. PFR File, Tabs 1, 4, 8. Therefore, we affirm the administrative
judge’s findings in this regard.
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5 Termination is a personnel action under 5 U.S.C. § 2302(a)(2)(A). 4
it would have taken the same personnel action in the absence of the
whistleblowing disclosure or protected activity. 5 U.S.C § 1221(e)(2); see
Corthell, 123 M.S.P.R. 417, ¶ 8.
We affirm the administrative judge’s finding that the appellant made
whistleblowing disclosures that were a contributing factor in the termination. 6
Protected whistleblowing takes place when an appellant makes a disclosure
—including a disclosure to OIG—that she 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)(A), (B); DeLeonardo v. Equal Employment
Opportunity Commission , 103 M.S.P.R. 301, ¶ 6 (2006). An appellant need not
show that the matter disclosed actually established a violation or other situation
as described therein. DeLeonardo, 103 M.S.P.R. 301, ¶ 6. Instead, an appellant
must prove that the matter disclosed was one which a reasonable person in her
position would believe evidenced any of the situations set forth in 5 U.S.C.
§ 2302(b)(8). Id. The proper test for determining whether an appellant had a
reasonable belief that her disclosures revealed misconduct prohibited under the
whistleblower protection statutes is whether a disinterested observer, with
knowledge of the essential facts known to and readily ascertainable by an
appellant, could reasonably conclude that the disclosure describing the actions of
6 When summarizing the issues to be adjudicated in this appeal, the administrative judge
identified four disclosures that the appellant raised pursuant to 5 U.S.C. § 2302(b)(8).
IAF, Tab 13 at 1-2, Tab 29 at 2; ID at 25. The appellant has not challenged the
administrative judge’s identification of these disclosures. We recognize that, in
addition to the four disclosures noted in the record, some of the appellant’s disclosures
to OIG and her “Inspector General Action Request” could constitute activity protected
by 5 U.S.C. § 2302(b)(9), her disclosure to the agency that her supervisor improperly
accessed her hiring documents could be protected as a disclosure of an abuse of
authority under section 2302(b)(8)(A), and her allegation that she did not pass her ICC
evaluation as a result of her improper access disclosure could constitute an additional
reprisal claim. However, because the appellant was given an opportunity to, but did
not, raise such claims or object to the administrative judge’s characterization of her
disclosures and personnel actions below or on review, and she was represented by
counsel at all relevant times, we do not address these matters any further.5
the government evidences wrongdoing as defined in 5 U.S.C. § 2302(b)(8). Id.
(citing Lachance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999)). Moving to the
contributing factor requirement, one way for an appellant to prove this is the
knowledge/timing test, which includes evidence that the official taking the
personnel action knew of the whistleblowing disclosure and that the action
occurred within a period of time such that a reasonable person could conclude
that the disclosure was a contributing factor in the decision to take the contested
action. 5 U.S.C. § 1221(e)(1)(A)-(B); Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶ 18 (2015).
Upon our review, we find that the administrative judge reached appropriate
conclusions in the initial decision regarding the appellant’s whistleblowing
disclosures and whether such disclosures were a contributing factor in the
termination. ID at 28-37. From an objective standpoint, one could reasonably
conclude that the appellant’s disclosures regarding grade inflation concerned a
violation of a rule or policy. ID at 28; see Benton-Flores v. Department of
Defense, 121 M.S.P.R. 428, ¶ 9 n.3 (2014) (stating that while the appellant did
not identify a specific law, rule, or regulation, she provided sufficiently detailed
statements to implicate an identifiable violation of a law, rule, or regulation).
Similarly, one could reasonably conclude that the appellant alleged an abuse of
authority when making her disclosure regarding J.B. improperly denying her
request to appeal her failed ICC determination because she needed to pass her
ICC evaluation to remain teaching at DLI. ID at 34; see Wheeler v. Department
of Veterans Affairs , 88 M.S.P.R. 236, ¶ 13 (2001) (outlining that an abuse of
authority occurs when there is an arbitrary or capricious exercise of power by a
Federal official or employee that adversely affects the rights of any person or that
results in personal gain or advantage to himself or to others). The agency
supervisors who made the termination decision, J.B., H.F., and B.L., indisputably
had knowledge of her whistleblowing disclosures, as many of the disclosures
were directed to them or directly involved them. ID at 31, 34; see, e.g., IAF, Tab6
16 at 11-12. Moreover, each of the appellant’s whistleblowing disclosures
occurred within 6 months of her termination. ID at 25; see Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 13 (stating that 6 months is
well within the range of time between a whistleblowing disclosure and a
personnel action from which an inference of causation arises), aff’d, 353 F. App’x
435 (Fed. Cir. 2009). Thus, the appellant satisfied the knowledge/timing test.
In reaching these conclusions, the administrative judge considered the
evidence of record and made demeanor-based credibility determinations from the
hearing testimony. ID at 2-42. Her findings and analysis on these issues are
detailed, precise, and corroborated throughout the record. These findings, which
the appellant does not specifically contest on review, are hereby affirmed.
PFR File, Tab 4; see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6
(2016) (finding no reason to disturb the administrative judge’s findings where she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility) ; Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
We modify the initial decision’s Carr factor analysis, but we still find that the
agency proved by clear and convincing evidence that it would have terminated the
appellant’s appointment absent her whistleblowing disclosures.
Because the appellant met her burden of proving by preponderant evidence
that her whistleblowing disclosures were a contributing factor in the termination,
the analysis shifts to whether the agency proved by clear and convincing evidence
that it would have taken the same action in the absence of those disclosures.
Corthell, 123 M.S.P.R. 417, ¶ 8. In determining whether an agency meets its
burden, the Board considers the relevant facts and circumstances, including
(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 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.7
Carr, 185 F.3d at 1323. The Board does not view the Carr factors as discrete
elements; rather, they are weighed together to determine if the pertinent record
evidence is clear and convincing as a whole. Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶ 42 (2016).
In the initial decision, the administrative judge found that the agency
proved by clear and convincing evidence that it would have terminated the
appellant’s appointment in the absence of her whistleblowing disclosures. ID at
37-43. On review, the appellant takes issue with the administrative judge’s
findings on each Carr factor, arguing that the agency’s evidence in support of the
termination is not strong, that the agency officials involved in the termination had
a motive to retaliate against her, and that Carr factor 3 was not properly
considered. PFR File, Tab 4 at 22-29.
As an initial matter, in support of the appellant’s arguments on review, she
contests some of the relevant credibility determinations made by the
administrative judge. PFR File, Tab 4 at 24-29, Tab 8 at 8-10. In doing so, the
appellant merely repeats portions of hearing testimony from various witnesses
that she claims were contradictory. Id. The appellant also points to “moments of
non-clarity” during J.B.’s testimony, even though the administrative judge
highlighted some of these moments and took them into consideration when
rendering her credibility findings. ID at 8 n.6; PFR File, Tab 4 at 28. The Board
must give deference to an administrative judge’s credibility determinations when
they are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing; 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). Upon our review, we find that
the appellant’s arguments do not constitute sufficiently sound reasons for
disturbing the administrative judge’s explicit and implicit credibility
determinations; thus, we affirm them.8
As set forth in the initial decision with regard to the first Carr factor, we
agree that the evidence strongly supports the termination decision. ID at 38-41.
The evidence of record substantiates that the appellant engaged in a pattern of
misconduct that is unacceptable in the workplace, especially for a term appointee
serving a trial period. See McCormick v. Department of the Air Force ,
98 M.S.P.R. 201, ¶ 11 (2005) (stating that the Board recognizes that a supervisor
has an obligation to use the probationary period to assess one’s potential for
success). Beginning with the most severe of the misconduct allegations,
unprofessional and disrespectful behavior, the appellant sent numerous emails
and engaged in communications with her supervisors and colleagues that were
inappropriate. See, e.g., IAF, Tab 15 at 29, Tab 16 at 14, Tab 17 at 14-15, Tab 18
at 14, 22, Tabs 35-36, Hearing Compact Discs (HCD) 1-2 (testimony of J.B. and
H.S.). Through these communications, the appellant struck condescending tones,
insulted a DLI faculty member’s comprehension of the English language,7 called
her first-level supervisor’s actions “sophomoric,” and disregarded a response
from her second -level supervisor. Id. The appellant also called her faculty
mentor “too perfect” during an in -person meeting. PFR File, Tab 4 at 10.
On review, the appellant concedes that some of her behavior was “unprofessional
and disrespectful” and that she “act[ed] out against her better judgment.”
Id. at 26-27. The appellant argues that she acted in such a way because the
agency provoked her. Id. Although the appellant may have been frustrated about
the way that her superiors handled certain matters, we see no evidence to suggest
that anyone at the agency was attempting to provoke her. Accordingly, the
appellant’s feelings of provocation do not significantly undermine the stated
reasons for the termination .
The agency’s evidence also shows that the appellant unnecessarily included
employees on some of her email communications. IAF, Tab 15 at 29-30.
7 The appellant wrote to P.D. that “part of the problem here, apparently, is perhaps your
limited comprehension of the English language.” IAF, Tab 18 at 14. 9
On review, the appellant claims that she did not violate any agency policy when
doing so. PFR File, Tab 4 at 26. However, the agency never alleged that the
appellant violated any policy; rather, it claimed that including other employees on
emails that did not concern them was unnecessary. IAF, Tab 1 at 26. Thus, the
evidence is strong that the appellant acted in an unprofessional and disrespectful
manner.
Next, strong evidence in the record demonstrates that the appellant failed to
accept opportunities that the agency provided to her during her trial period.
Indisputably, the appellant had concerns and questions on the ICC process.
IAF, Tab 16 at 33. Because of this, the appellant’s second-level supervisor
arranged a meeting with the appellant, the appellant’s first-level supervisor, and a
Faculty Development Specialist to discuss the ICC process. Id. In response, the
appellant stated that she was “not interested in any meeting or conference as you
and others have suggested.” Id. In a similar vein, the appellant’s first-level
supervisor offered to meet with the appellant to discuss other issues that arose,
and offered assistance in the ICC process, which the appellant continuously
rebuffed. IAF, Tab 19 at 5-6, Tab 20 at 16; HCD 1-2 (testimony of J.B.). It is
certainly troublesome for an employee serving a trial period, as the appellant was,
to refuse opportunities to improve her performance and relationship with others.
The agency proffered strong evidence that the appellant turned down these
opportunities.
Pertaining to the allegation that the appellant failed to follow instructions,
the appellant used the title of “Associate Professor” after being told by J.B. to use
the correct title of “Assistant Professor,” she took it upon herself to introduce
L.D. to another DLI employee instead of just escorting L.D. to another agency
office as J.B. instructed, and she was also away from her desk for more than
15 minutes without advising her supervisor. IAF, Tab 20 at 16-17; HCD 1-2
(testimony of J.B.). In finding the agency’s evidence strong to support this
misconduct, the administrative judge relied on hearing testimony from the10
appellant, J.B., and L.D. ID at 38-41. On review, the appellant contests these
credibility determinations. PFR File, Tab 4 at 23-28, Tab 8 at 8-10. As stated
above, we find that the appellant has not set forth sufficiently sound reasons for
disturbing the administrative judge’s implicit and explicit credibility
determinations. See Haebe, 288 F.3d at 1301. Accordingly, we find that the
agency set forth strong evidence that the appellant failed to follow instructions.
The agency’s evidence also strongly supports a finding that the appellant
went outside of the established chain of command when she requested directly
from P.D. that she (P.D.) withdraw as her ICC observer. IAF, Tab 18 at 12, 24.
This request contradicted the instructions provided to the appellant regarding
following the chain of command.8 Id. at 24.
The appellant’s assertion in her petition for review, that some of the
charged misconduct is only “minor,” may be true. PFR File, Tab 4 at 26.
However, when viewing the appellant’s conduct in totality, and considering that
she was serving a trial period, it is clear that the agency proffered strong evidence
supporting its termination decision. Therefore, we agree with the administrative
judge that the agency has proven that Carr factor 1 weighs strongly in its favor.
ID at 37-41.
Conversely, the Carr factor describing the existence and strength of the
agency’s motive to retaliate favors the appellant more than the administrative
judge initially determined. ID at 41-42. As the appellant outlines in her petition
for review, the administrative judge erred when she found that there was little to
no motivation to retaliate on the part of the agency officials involved in the
appellant’s termination. ID at 41-42; PFR Tab 1 at 4, Tab 4 at 27-29;
see Whitmore v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012)
8 We have concerns about the administrative judge’s finding that the appellant’s
decision to raise the grade inflation allegation to the military side of DLI was a failure
to follow the chain of command. ID at 39-40. The appellant did not allege in this
appeal that the agency retaliated against her for any whistleblowing disclosure that she
made to the military side of DLI regarding grade inflation, IAF, Tab 13 at 1-2, Tab 29
at 2; ID at 25, and we do not address this issue further.11
(stating that “[t]o find zero evidence suggesting any retaliatory motive on this
record is to take an unduly dismissive and restrictive view of Carr factor two”).
The appellant’s whistleblowing disclosures alleged grade manipulation and an
abuse of authority in the ICC process. ID at 25. The contents of these
disclosures reflect negatively on the agency’s supervisors who made the decision
to terminate the appellant, J.B., H.F., and B.L., as each held management
positions within the DLI, as Department Chairperson, Dean, and Provost,
respectively. IAF, Tab 16 at 11, Tab 22 at 7. It is conceivable that the
allegations made by the appellant through her whistleblowing disclosures could
impugn the reputation of those charged to lead an academic institution like DLI.
See Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 69 (2011)
(finding a motive to retaliate because the proposing and deciding officials were
high level officials and the whistleblowing disclosures reflected on them as
representatives of the general institutional interests of the agency). Thus, we find
that this Carr factor weighs in the appellant’s favor.
Moving to Carr factor 3, the agency did not show that it took similar
actions against employees who are not whistleblowers but otherwise similarly
situated to the appellant. ID at 42. As the administrative judge found, the
absence of evidence concerning this factor “tends to cut slightly against” the
agency. Miller v. Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016);
ID at 42. Contrary to the appellant’s argument on review, the administrative
judge properly weighed this Carr factor. PFR File, Tab 4 at 29.
In the end, we conclude that the strength of the agency’s evidence in
support of the termination outweighs the other two Carr factors. See McCarthy v.
International Boundary & Water Commission , 116 M.S.P.R. 594, ¶¶ 64-67 (2011)
(finding that the strength of the agency’s evidence supporting the appellant’s
termination outweighed the other Carr factors), aff’d, 497 F. App’x 4 (Fed. Cir.
2012). As discussed above, the agency used the trial period to assess the
appellant’s fitness for Federal employment and terminated her appointment based12
on a pattern of improper behavior over many months. We are left with a firm
belief that the agency would have taken the termination action even absent the
appellant’s whistleblowing disclosures.
NOTICE OF APPEAL RIGHTS9
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).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.10 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Nielsen_Norma_SF-1221-18-0233-W-2_Final_Order.pdf | 2024-07-30 | NORMA NIELSEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-18-0233-W-2, July 30, 2024 | SF-1221-18-0233-W-2 | NP |
827 | https://www.mspb.gov/decisions/nonprecedential/Brown_SulaimonDE-0752-21-0135-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SULAIMON BROWN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-0752-21-0135-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sulaimon Brown , Goose Creek, South Carolina, pro se.
Ingolf D. Maurstad , Esquire, Lincoln, Nebraska, 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 without holding his
requested hearing. On petition for review, the appellant argues that the
administrative judge was biased against him and applied case law instead of
statutes and regulations. The appellant also asserts that he was not a dual-status
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
technician and that he had career tenure because he encumbered a permanent
position. He makes other arguments pertaining to suitability, discrimination,
whistleblower reprisal, due process, and harmful procedural error, asserts that the
agency took an action that was not in accordance with law, and disputes the
merits of his termination. In his reply to the agency’s response to the petition for
review, the appellant argues that the administrative judge was not properly
appointed. 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
address the appellant’s suitability and Appointments Clause arguments, we
AFFIRM the initial decision.
On his initial appeal form, the appellant indicated that he was appealing a
suitability action, but the administrative judge did not address that issue. Initial
Appeal File, Tab 1 at 3. Nevertheless, we find that the appellant cannot make a
nonfrivolous allegation of Board jurisdiction under the Office of Personnel
Management’s suitability regulations because the appellant was an excepted
service employee, and with limited exceptions not applicable here, those
regulations only apply to positions in the competitive service. See Swango v.
Department of Veterans Affairs , 59 M.S.P.R. 235, 240-41 (1993); 5 C.F.R.2
§ 731.101(b) (definition of “covered position”). Regarding the appellant’s
argument that the administrative judge was not properly appointed, we decline to
address this issue because the appellant failed to raise it below. See McClenning
v. Department of the Army , 2022 MSPB 3, ¶¶ 5-15.
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
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board7 | Brown_SulaimonDE-0752-21-0135-I-1_Final_Order.pdf | 2024-07-30 | SULAIMON BROWN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-21-0135-I-1, July 30, 2024 | DE-0752-21-0135-I-1 | NP |
828 | https://www.mspb.gov/decisions/nonprecedential/Carrigan_RobertAT-0752-20-0192-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT CARRIGAN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0752-20-0192-I-1
DATE: July 30, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant..
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
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was previously employed as a Supervisory Instructional
Systems Specialist/Director of the Curriculum and Instructional Standards Office
within the agency’s Defense Equal Opportunity Management Institute (DEOMI).2
Initial Appeal File (IAF), Tab 9 at 31. In that role, among other things, he was
responsible for providing strategic direction and obtaining accreditation for
DEOMI’s academic programs. Id. at 35-39. By a letter dated February 25, 2019,
the agency proposed to remove the appellant for failure to follow a directive (two
specifications) and creating an apparent conflict of interest in the performance of
his duties (one specification). Id. at 10-15.
The first specification of failure to follow a directive alleged that the
appellant acted in a position of management or control of the external
organization that served as the accrediting body for the agency’s academic
programs, the Council on Occupational Education (COE), by serving as a
Commissioner and an Executive Committee member, despite being previously
instructed to limit his outside role in COE to that of a Department of Defense
(DoD) Liaison and an advisor of the agency’s interests. Id. at 10. The second
specification alleged that after the appellant was issued a memorandum that
rescinded his appointment as a Liaison, instructed him to cease and desist from
his relationship with COE, and ordered him to cease being listed on COE’s
website as a Commissioner, agency officials later discovered that the appellant’s
name was once again appearing on COE’s website identifying him as a
Commissioner, and the appellant continued to serve as a Commissioner and a
member of the Commission’s Executive Committee in violation of the
memorandum’s instructions. Id.
2 The appellant’s position description identifies his former position classification title as
“Supervisory Instructional Systems Specialist,” and his title as “Director,” and both
titles were used interchangeably in the documents included in the record below. See
Initial Appeal File (IAF), Tab 9 at 31, 34. For the sake of simplicity, we will refer to
the appellant’s former title as “Director” throughout this decision. 2
The single specification of creating an apparent conflict of interest in the
performance of his duties alleged that, by serving in the role of Commissioner
with COE and by acting as a part of the recognized decision-making body of
COE, the appellant placed himself in a position where he could be perceived as
having influence to change COE’s rules in order to promote the agency’s
interests, or of shaping DoD’s programs to favor COE. Id. at 11. The agency
alleged that serving in this dual capacity created an apparent conflict of interest
and undermined the efficiency of the Federal service. Id. The appellant provided
written materials and an oral response to the proposal. Id. at 19-23. After
considering the appellant’s responses, the deciding official issued a decision
letter sustaining both charges and the removal penalty. Id. at 24-30.
The appellant subsequently filed a formal equal employment opportunity
(EEO) complaint alleging that the agency discriminated against him on the basis
of race (Caucasian), sex (male), and in retaliation for his prior EEO activity when
it removed him from his position. IAF, Tab 1 at 16; Tab 14 at 24. After 120 days
elapsed without the agency issuing a final agency decision on the appellant’s
EEO complaint, the appellant timely filed a Board appeal challenging his
removal. IAF, Tab 1; see 5 C.F.R. § 1201.154(b)(2). The appellant also raised
the following affirmative defenses: discrimination on the basis of his race and
sex; retaliation for prior EEO activity; retaliation for protected whistleblowing
activity; retaliation for exercising a complaint or grievance right; and harmful
procedural error. IAF, Tab 1 at 25-27; Tab 13 at 4-9. After holding the
appellant’s requested hearing, see IAF, Tab 20, Hearing Compact Disc (HCD),
the administrative judge issued an initial decision that sustained specification 1 of
failure to follow a directive, but did not sustain specification 2, IAF, Tab 22,
Initial Decision (ID) at 6-10. Having sustained one of the specifications, the
administrative judge sustained the charge. ID at 10. The administrative judge
also found that the agency met its burden of proving the single specification of
creating an apparent conflict of interest and sustained the charge. ID at 11-12.3
She further found that there was a nexus between the appellant’s misconduct and
the efficiency of the service and that the removal penalty was reasonable under
the circumstances. ID at 12-13, 21-23. Finally, she concluded that the appellant
failed to prove any of his affirmative defenses. ID at 13-21.
The appellant has filed a petition for review of the initial decision, to which
the agency filed a response. Petition for Review (PFR) File, Tabs 1, 3. The
appellant has not filed a reply.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge abused her
discretion by denying two of his requested witnesses and summarizes the
testimony he believes the witnesses would have provided if they had the
opportunity to testify. PFR File, Tab 1 at 4-6, 18-24. The appellant also argues
that the administrative judge made erroneous factual findings and
credibility-based determinations, and applied incorrect legal standards in reaching
her conclusion that the agency met its burden of proving both charges. Id. at 4-7,
24-33. Additionally, the appellant appears to suggest that the administrative
judge erred by rejecting his affirmative defense of harmful procedural error, and
his claims that the agency removed him in retaliation for his prior EEO activity
and because he filed a complaint with the agency’s Office of the Inspector
General (OIG). Id. at 6-7, 23-25.
The administrative judge did not abuse her discretion by denying the appellant’s
proposed witnesses.
In his prehearing submission, the appellant requested that one of the
witnesses, his former third-level supervisor, testify regarding his knowledge of
the appellant’s role as DoD Liaison and of the process of removing the appellant.
IAF, Tab 14 at 19-20. The appellant further requested that the other witness, the
Executive Director of COE, be permitted to testify regarding the appellant’s role
as a Commissioner and Executive Committee Member at the COE. Id. In an4
order summarizing the prehearing conference, the administrative judge denied
both witnesses, concluding that their proposed testimony was either not relevant
or duplicative of witnesses that were already approved. IAF, Tab 18 at 6. At the
beginning of the hearing, the administrative judge provided the parties with the
opportunity to object to any of her rulings in the prehearing conference order, and
the appellant did not raise an objection at that time. HCD.
By failing to object to the administrative judge’s ruling excluding his
requested witnesses, when provided with the opportunity to do so, the appellant
failed to preserve this issue for review. See Sanders v. Social Security
Administration, 114 M.S.P.R. 487, ¶¶ 8-10 (2010) (concluding that the appellant
failed to preserve for review her argument that the administrative judge
improperly denied her proposed witness when she failed to object to the
administrative judge’s ruling excluding her requested witnesses when given the
opportunity to do so); Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581
(1988) (concluding that the appellant’s failure to timely object to rulings on
witnesses precluded him from doing so on petition for review); see also Franco v.
U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985) (noting that an administrative
judge has wide discretion under 5 C.F.R. §§ 1201.41(b)(8), (10) to exclude
witnesses where it has not been shown that their testimony would be relevant,
material, and nonrepetitious). Consequently, we conclude that the administrative
judge did not abuse her discretion when she denied the two identified witnesses
proposed by the appellant.3
The agency met its burden of proving failure to follow a directive.
To prove a charge of failure to follow a directive, an agency must establish
that the employee: (1) was given a proper instruction, and (2) failed to follow the
3 Additionally, although the administrative judge denied the appellant’s request to have
COE’s Executive Director testify, she permitted testimony from the appellant at the
hearing—over the agency’s objection—concerning the contents of a May 31, 2019 letter
that included much of the information to which the appellant argues the Executive
Director would have testified. HCD (testimony of the appellant); see PFR File, Tab 1
at 18-24, 27, 30; IAF, Tab 14 at 49-52.5
instruction, without regard to whether the failure was intentional or unintentional.
Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 5 (2014). The first
specification of this charge stated that, in the memorandum appointing him to the
position of DoD Liaison to the COE, the appellant was warned that his role was
limited to that of serving as a DoD Liaison and an advisor of DoD’s interestsand
that he was prohibited from being involved in matters of management or control
of the COE. IAF, Tab 9 at 10; see id. at 53-54.
Despite this warning, in March 2018, COE’s Executive Director sent the
deciding official a letter thanking her for the appellant’s contributions, in which
the Executive Director identified that the appellant was serving as a
Commissioner and an Executive Committee member of COE in violation of his
appointment letter. IAF, Tab 9 at 10; see id. at 55-56. The second specification
alleged that, after the appellant’s appointment as a Liaison was rescinded and he
was instructed to cease and desist from his relationship with COE and cease being
listed on COE’s website as a Commissioner, agency officials discovered that the
appellant’s name was replaced on COE’s website identifying him as a
Commissioner after it had previously been removed, and the appellant continued
to serve as a Commissioner and a member of the Commission’s Executive
Committee in violation of the memorandum’s instructions. IAF, Tab 9 at 10 .
On review, the appellant argues that he was not serving in a position of
management or control over the COE in his role as a Commissioner and member
of the Commission’s Executive Committee, and so the administrative judge erred
by concluding that the agency proved the first specification of the charge. PFR
File, Tab 1 at 5-6, 27-29. Specifically, he restates his argument that, in those
roles, he did not participate in the “internal, day-to-day management” or control
of the operations of COE, and instead only served in an advisory capacity and had
no role in the management or control over the organization. Id. at 5-6, 27-29. He
also challenges the administrative judge’s credibility findings, arguing that she
improperly declined to credit his testimony that he believed he was permitted to6
serve as a Commissioner, and improperly credited testimony from the agency’s
ethic’s expert concluding that “management or control” could include executive
oversight functions of COE. Id. at 24-25, 27-32.
As the administrative judge noted in the initial decision, the letter
appointing the appellant to the DoD Liaison position specifically informed him
that all of COE’s external references to the appellant had to clearly identify him
as a “DoD Liaison” and not as an officer of the organization, and that he could
not be involved in matters of management or control of the COE. IAF, Tab 9
at 53-54; see ID at 3-4, 7-8. Additionally, in a series of emails exchanged
between the appellant and the agency’s ethics attorney in August 2016, prior to
the appointment, the appellant raised the prospect of becoming a “Commissioner”
with COE. The ethics attorney warned him that an actual conflict of interest
could arise if the appellant served on the council in any matter that affected
DEOMI’s accreditation and offered as an alternative to the appellant’s request to
serve as a Commissioner that he be appointed as a DoD Liaison, which was
permitted by the agency’s Joint Ethics Regulations. IAF, Tab 9 at 49-50.
In concluding that the appellant failed to follow this directive, the
administrative judge noted the appellant’s own acknowledgment that he was
serving as a COE Commissioner and Executive Committee Member, that it was
undisputed that the COE’s website had identified the appellant as a member of the
COE Commission and an Executive Committee Member, and that the COE
President referred to the Commission as the “recognized decision-making body”
of the organization. HCD (testimony of the appellant); Id. at 55-56, 60-61, 72-
74; see ID at 7-8. Consequently, the administrative judge determined that, in
order to prove this specification, the agency was not required to prove that the
appellant actually exercised management or control over the COE, and instead
only had to show that the appellant violated the agency’s directive limiting his
appointment to the position of DoD Liaison when he exceeded the authority7
outlined in the directive and served in the role of COE Commissioner and
Executive Committee member. ID at 8-9.
We agree. The Board is required to review the agency’s decision on an
adverse action solely on the grounds invoked by the agency, and the Board will
not substitute what it considers to be a more adequate or proper basis. Gottlieb v.
Veterans Administration , 39 M.S.P.R. 606, 609 (1989). As outlined in the
proposal, the letter appointing the appellant to the position of DoD Liaison
clearly limited his appointment to that specific role, and the letter was issued in
direct response to the appellant’s request to be appointed to COE as a
Commissioner. IAF, Tab 9 at 10, 48-54. The agency’s ethics expert testified at
length about the importance of limiting the appellant’s participation to the
parameters outlined in the letter and about the importance of the DoD Liaison
designation, noting that the Liaison position contemplated a “lesser” form of
participation that was allowable under the agency’s Joint Ethics Regulations
(JER), while participation in the Commissioner and Executive Committee
member positions the appellant occupied with COE was not permitted under the
JER, based on his understanding of the duties of those positions. HCD (testimony
of agency’s ethics expert); IAF, Tab 9 at 122-38. Although the specification
discusses the appellant’s participation in duties exercising management or control
over COE, the directive the appellant was charged with violating made clear that
he was only permitted to serve as a DoD Liaison with COE and that any external
references by COE to the appellant had to make that relationship clear. IAF,
Tab 9 at 53-54. There is no dispute that the appellant served as a Commissioner
and as an Executive Committee member, so we agree with the administrative
judge’s conclusion that the agency proved that the appellant failed to follow the
October 12, 2016 directive, irrespective of whether he exercised any management
or control over the COE. See ID at 8-9.
Regarding the appellant’s challenges to the administrative judge’s
credibility determinations, the Board must give deference to an administrative8
judge’s credibility determinations when they are based, explicitly or implicitly,
on the observation of 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). In concluding that the appellant violated the agency’s directive by serving
as a Commissioner and Executive Committee member with COE, the
administrative judge relied on the entire evidentiary record, to include credibility
determinations based on the hearing testimony from the appellant and agency
witnesses. ID at 6-9; Haebe, 288 F.3d at 1301. On review, the appellant merely
states his general disagreement with the administrative judge’s credibility
findings, and has not presented sufficiently sound reasons to disturb the
administrative judge’s credibility determinations.4 See Clay v. Department of the
Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the
administrative judge’s findings where she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions). Accordingly, the
administrative judge correctly found that the agency proved the first specification
of the failure to follow a directive charge.5
4 On review, the appellant highlights one piece of testimony cited by the administrative
judge to which he takes particular objection, concerning the deciding official’s assertion
that DEOMI paid COE $40,000 per year to accredit DEOMI’s curriculum, calling the
assertion slanderous, misleading, and a lie. PFR File, Tab 1 at 18-19; see ID at 2 n.4
(citing HCD (testimony of the deciding official)). However, the appellant
mischaracterizes the witness’s testimony. In her testimony, the witness asserted that the
last figure she “recalled” DEOMI paid to COE for accreditation was $40,000, but she
also acknowledged that the figure varied over time and she didn’t know the exact
amount. HCD (testimony of the deciding official). This is consistent with the language
in the initial decision identifying that DEOMI paid COE “approximately $40,000 per
year.” ID at 2 n.4.
5 Because we agree with the administrative judge’s conclusion that the agency met its
burden of proving this specification by proving that the appellant failed to follow the
directive instructing him to serve as a DoD Liaison to COE, when he exceeded the
instructions in that directive and served as a Commissioner and member of the
Executive Committee, we make no findings concerning her alternative conclusion that
the appellant was acting in a position of management or control by serving as a COE
Commissioner and Executive Committee member. See ID at 8-9. 9
The appellant also makes a number of arguments on review regarding the
second specification of the failure to follow a directive charge, which alleged that
he continued to serve as a Commissioner and Executive Committee member and
allowed his name to reappear on COE’s website in direct violation of the
agency’s order instructing him to cease and desist from his relationship with COE
and to cease being listed on COE’s website. However, the administrative judge
did not sustain this specification, concluding that the agency failed to meet its
burden of proving the specification. ID at 11-12. We agree with the
administrative judge’s conclusion, and therefore find it unnecessary to address
these arguments further. Finally, because the agency proved one of the two
specifications of the charge, the administrative judge correctly concluded that the
agency proved the charge. ID at 10; see Burroughs v. Department of the Army ,
918 F.2d 170, 172 (Fed. Cir. 1990) (holding that when more than one
specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge).
The agency proved the charge of creating an apparent conflict of interest.
The single specification of the second charge alleged that by serving as a
Commissioner and as a part of the recognized decision-making body of COE, the
appellant placed himself in a position where he could be perceived as having
influence to change COE’s rules in order to promote the agency’s interests or of
shaping DoD’s programs to favor COE, thereby creating an apparent conflict of
interest and undermining the efficiency of the Federal service. IAF, Tab 9 at 11.
The administrative judge sustained the single specification of the charge. ID
at 11-12. In sustaining the charge, the administrative judge cited the fact that as a
Commissioner with COE, the appellant was responsible for approving the
accreditation of other institutions, and in his capacity as Director of DEOMI’s
Curriculum and Instructional Standards Office, he was responsible for seeking
accreditation of DEOMI’s programs from COE, thereby raising significant ethical10
questions and placing DEOMI in a position where it could potentially benefit
from rule changes the appellant might oversee as a Commissioner. ID at 11.
The administrative judge also credited the testimony by the agency’s ethics
expert, who testified that the appellant holding the position of Commissioner
created a potential conflict of interest. ID at 12; see HCD (testimony of the
agency’s ethics expert). She cited as persuasive the ethics expert’s testimony that
“management and control” can refer to the day-to-day operations or oversight of
an organization, and that based on his review of materials on COE’s website
regarding the responsibilities of its Commissioners and his knowledge and
experience as the manager of the agency’s ethics program, he believed that the
appellant serving in that role created an appearance of a conflict of interest. ID
at 12; see HCD (testimony of the agency’s ethics expert).
On review, the appellant challenges the testimony provided by the agency’s
ethics official concerning the apparent conflict of interest, restating his argument
that he did not exercise any management or control over the COE while serving
as a Commissioner. PFR File, Tab 1 at 21-22, 25-32. Specifically, the appellant
argues that he only served in an advisory capacity in his role with COE and that
he followed all applicable laws and agency directives during the course of his
appointment. Id. at 25. He also states that the only reason he was given the title
of “Commissioner” was so that he could partake in COE’s standards development
and conformity assessment and accreditation activities, and because COE did not
have a “Liaison” position title. Id. at 25, 30. The appellant acknowledges that as
a Commissioner, he participated in the development of Federal accreditation
standards, but argues that he only participated in any decision-making and voting
activities as a part of his role as a DoD Liaison. Id. at 30-31. He also identifies a
number of other accreditation boards that other Federal employees are permitted
to serve on, and asserts that he is being targeted and treated differently than those
employees. Id. at 29. Additionally, the appellant cites a letter from COE’s
Executive Director noting that even though Commissioners served on the11
“recognized decision-making body” of COE, the day-to-day-business and
management operations of COE rested with the Executive Director/President and
his staff. Id. at 27; see IAF, Tab 14 at 49. Finally, the appellant cites a number
of laws, regulations, and other provisions that he believes support his position
that he was permitted to serve as a Commissioner with COE and that he was not
serving in a position of management or control over the COE. See PFR File,
Tab 1 at 5-6, 10, 13, 21, 26-31 (citing the following: Public Law No. 104-113;
Public Law No. 108-237; 18 U.S.C. § 208; 10 U.S.C. §§ 1033(b), 1589(b);
15 C.F.R. part 287; 5 C.F.R. § 2634.903(c); Office of Management and Budget
Circular A-119; DoD’s Joint Ethics Regulation (JER) (DoD 5500.07-R); DoD
Manual 4120.24 -M).
In essence, the appellant is arguing that, contrary to the testimony provided
by the agency’s ethics expert, in serving as a Commissioner with COE he did not
have or exercise any decision-making authority over the COE’s functions, so his
role as a Commissioner did not present any conflict with his role as Director of
DEOMI’s Curriculum and Instructional Standards Office. However, the appellant
misunderstands the nature of the agency’s charge and the requirements for
proving a charge of creating an apparent conflict of interest.
To prove the existence of a conflict of interest, an agency must establish
that its employee was acting in two separate capacities, at least one of which
involved his official duties, and that the nature of his interests or duties in one
capacity had a “direct and predictable effect” on his interests or duties in his
other capacity. Ryan v. Department of Homeland Security , 123 M.S.P.R. 202,
¶ 12 (2016); Fontes v. Department of Transportation , 51 M.S.P.R. 655, 664
(1991). By contrast, to prove the existence of an appearance of a conflict of
interest, an agency must only show that an employee’s interests or duties in one
capacity would “reasonably create an appearance” of having an effect on his
interests or duties in the other capacity. Ryan, 123 M.S.P.R. 202, ¶ 12; Fontes,
51 M.S.P.R. at 664. Consequently, an agency can prove a charge of creating an12
apparent conflict of interest, even if it falls short of proving an actual conflict of
interest. See Ryan, 123 M.S.P.R. 202, ¶ 11. The Board has also held that
creating the appearance of an ethical violation (such as a conflict of interest)
requires some action by the employee. Id., ¶ 17.
Although the appellant largely challenges the agency ethics official’s
testimony, that “management and control” as defined in the relevant ethics
regulations could refer to functions the appellant performed as a Commissioner
and Executive Committee member on the COE, and the administrative judge’s
reliance on that testimony, even if the appellant is correct in his interpretation of
the relevant regulations, it is immaterial because the agency did not charge him
with violating any of those ethics regulations. Instead, the agency charged the
appellant with creating an “appearance” of a conflict of interest. We agree with
the administrative judge’s conclusion that, based on the information available to
the agency at the time it removed the appellant,, the agency could have
reasonably concluded that the appellant’s participation as a Commissioner
“reasonably create[d] an appearance” of having an effect on the appellant’s
interests or duties as a Director at DEOMI, irrespective of whether the appellant’s
actions were actually improper and violated the statutes, rules, or regulations the
appellant identifies. IAF, Tab 9 at 60-61, 72-74; see ID at 11-12; Fontes,
51 M.S.P.R. at 664; Ryan, 123 M.S.P.R. 202, ¶ 11.
Further, the appellant was specifically warned by the agency in advance of
his appointment as DoD Liaison about what types of actions (including being
referred to as anything other than “DoD Liaison” on any of COE’s external
media, and serving in anything other than an advisory role) could create an
appearance of a conflict of interest. IAF, Tab 9 at 53-54; cf. Ryan, 123 M.S.P.R.
202, ¶ 13 (“Fundamental fairness precludes disciplining an employee for creating
the appearance of an ethical violation unless he should have known it would
appear improper to a reasonable observer under the circumstances.”). Despite
these warnings, the appellant knowingly took on the role and duties of a13
Commissioner and Executive Committee member, thereby creating the
appearance of a conflict of interest. See Ryan, 123 M.S.P.R. 202, ¶ 17. The mere
fact that agency officials mentioned the JER in the guidance provided to the
appellant did not elevate proving a violation of the regulation to an element of the
charge. IAF, Tab 9 at 48-54. Accordingly, we agree with the administrative
judge that the agency met its burden of proving that, by serving as a member of
COE’s Commission—the recognized decision-making body of COE, and the body
that provided accreditation to DEOMI’s programs—the appellant created the
appearance of a conflict of interest with his role as DOEMI’s Director of the
Curriculum and Instructional Standards Office. ID at 11-12.
The administrative judge correctly concluded that the appellant failed to prove
some of his affirmative defenses.
In the initial decision, the administrative judge concluded that the appellant
failed to establish his affirmative defenses of harmful procedural error, retaliation
for exercising a complaint or grievance right, discrimination on the basis of his
race and sex, retaliation for prior EEO activity, and retaliation for protected
whistleblowing. ID at 13-21. On review, the appellant challenges the
administrative judge’s findings concerning his harmful error, EEO retaliation, and
whistleblower retaliation affirmative defenses. PFR File, Tab 1 at 6-7, 23-25.
However, he does not appear to challenge the administrative judge’s findings
concerning his affirmative defenses of discrimination on the basis of race and sex,
and retaliation for exercising a complaint or grievance right, so we have not
addressed those claims on review.
The appellant did not establish that the agency committed harmful
procedural error.
For the first time on review, the appellant raises what he describes as a
“due process” violation based on the agency ethics officer’s “dereliction of duty”
in his failure to alert the appellant of the possible conflict of interest and provide
him a period of time to remedy the issue, as required by 45 C.F.R. § 73.735-903.14
See PFR File, Tab 1 at 7, 27, 32. As an initial matter, the appellant did not raise
this argument below and thus we need not consider it. See Clay, 123 M.S.P.R.
245, ¶ 6; 5 C.F.R. § 1201.115(d). Additionally, although the appellant
characterizes this claim as a due process violation, he is essentially alleging that
the agency engaged in harmful procedural error by failing to follow the
requirements in the cited regulation concerning remedying a potential conflict of
interest. See Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 9 (2015)
(noting that a harmful error is an 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).
Regardless, the provision cited by the appellant, 45 C.F.R. § 73.735-903, is
only applicable to employees of the Department of Health and Human Services.
See 45 C.F.R. § 73.735-101 (“In accord with these principles, the regulations in
this part are issued to inform [Health and Human Services] employees and special
Government employees what standards of conduct are expected of them in
performing their duties and what activities are permitted or prohibited both while
they are employed and after their employment with the Department is ended.”);
45 C.F.R. § 73.735-102 (defining “Department” as “the Department of Health and
Human Services,” and a “Special Government employee” as “an individual who is
retained, designated, appointed, or employed to perform temporary duties either
on a full-time or intermittent basis, with or without compensation, for not to
exceed 130 days during any period of 365 consecutive days”); 45 C.F.R.
§ 73.735-103(a) (“The regulations in this part apply to all employees of the
Department [of Health and Human Services] and to special Government
employees to the extent indicated in Subparts J and K.”). Thus, DOD agency
officials were not obligated to follow the procedures outlined in that regulation
and did not commit harmful error by failing to do so. 15
The appellant also challenges the administrative judge’s finding that he
failed to prove his claim that the agency committed harmful error by having the
Deputy Commandant—the appellant’s second-line supervisor—serve as the
proposing official instead of his first-line supervisor. PFR File, Tab 1 at 6-7,
23-24; see ID at 13-14. Specifically, the appellant restates his argument that the
Deputy Commandant did not have supervisory authority over him, and instead the
removal action should have been proposed by the Commandant (who served as
the deciding official in this case), and the Commandant’s supervisor, the Director
of the Diversity Management Operations Center (DMOC), should have served as
the deciding official. PFR File, Tab 1 at 23. To support his argument, the
appellant cites 5 U.S.C. § 7103, which defines “supervisor” as follows: “an
individual employed by an agency having authority in the interest of the agency
to . . . remove employees . . . or to effectively recommend such action, if the
exercise of the authority is not merely routine or clerical in nature but requires
the consistent exercise of independent judgment, except that, with respect to any
unit which includes firefighters or nurses, the term ‘supervisor’ includes only
those individuals who devote a preponderance of their employment time to
exercising such authority.” Id. at 23-24 (quoting 5 U.S.C. § 7103(a)(10)).
Referring to testimony from the Deputy Commandant acknowledging that she
“occasionally” gave direction to the appellant, the appellant suggests that the
Deputy Commandant did not meet this definition of “supervisor” because she did
not devote a preponderance of her employment time exercising authority over
him. Id. at 24.
The appellant misinterprets the cited provision. The clause of section
7103(a)(10) defining a “supervisor” as “only those individuals who devote a
preponderance of their employment to exercising [the authority to remove
employees]” is limited by the language immediately before it, making clear that
this clause is only applicable to “ any unit which includes firefighters or nurses. ”
See 5 U.S.C. § 7103(a)(10) (emphasis added). Because there is no evidence16
indicating that the appellant’s work unit includes firefighters or nurses, the
language defining “supervisor” based on the amount of time spent devoted to
supervisory functions is inapplicable here, and instead, the general provision
more broadly defining a “supervisor” as any agency official with the authority to
remove employees or recommend removal is operative. See id. Accordingly, we
find no error in the administrative judge’s finding that the appellant failed to
prove his harmful error affirmative defense claim.
We clarify the administrative judge’s findings concerning the
appellant’s affirmative defense of discrimination on the basis of race
and sex but still agree that he failed to prove this claim.
In the initial decision, the administrative judge concluded that the appellant
failed to establish his affirmative defense of discrimination on the basis of his
race or his sex. ID at 14-17. In making this finding, the administrative judge
cited the evidentiary standards set forth in Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015). ID at 13-14. Following the issuance of
the initial decision in this case, the Board issued Pridgen v. Office of Management
and Budget, 2022 MSPB 31, which overruled parts of Savage and clarified the
proper analytical framework to be applied to affirmative defenses of Title VII
discrimination and retaliation, id., ¶¶ 20-25, 30. Nonetheless, the outcome of this
appeal under Pridgen would be the same as that arrived at by the administrative
judge. Notably, under Pridgen, to obtain any relief, the appellant must still show,
at a minimum, that the prohibited consideration of race was a motivating factor in
the agency's decision to remove him, Pridgen, 2022 MSPB 31, ¶¶ 20-22, and we
agree with the administrative judge that the appellant failed to make this
showing.6
6 Because the appellant failed to prove that discrimination on the basis of race or sex
was a motivating factor, we need not reach whether it was a “but-for” cause of his
removal. See Pridgen, 2022 MSPB 31, ¶ 22.17
We remand the appeal for further adjudication of some of the appellant’s
affirmative defenses.
The administrative judge must make new findings regarding the
appellant’s claim of retaliation for protected EEO activity.
In his May 2018 EEO complaint, the appellant alleged that the deciding
official slowed down the reclassification of his position, criticized and harassed
him, treated him differently, and created a hostile work environment due to his
race and sex. IAF, Tab 13 at 27-30. In analyzing this affirmative defense claim,
the administrative judge acknowledged the stipulation from the parties that the
deciding official was aware of the appellant’s prior EEO complaint. ID at 17; see
IAF, Tab 13 at 24-20; Tab 14 at 16; Tab 16 at 6; HCD (discussion of agreed -upon
stipulations). Consequently, she assumed, without deciding, that the appellant
proved that retaliation for his prior EEO activity was a motivating factor in the
agency’s removal decision, but nevertheless concluded that given the seriousness
of the appellant’s misconduct, the agency demonstrated that it still would have
removed the appellant “regardless of his EEO activity.” ID at 17.
As noted above, here, the administrative judge did not make a specific
finding concerning whether the appellant established that his EEO activity was a
motivating factor in the removal decision, instead citing the parties’ stipulation to
the fact that the deciding official was aware of the appellant’s May 2018 EEO
activity at the time she issued the decision removing the appellant on March 26,
2019, and assuming without deciding that the appellant met his burden of proving
that his EEO activity was a motivating factor in the agency’s removal decision.
ID at 17. By citing the deciding official’s stipulation that she was aware of the
appellant’s protected EEO activity, the administrative judge may have been
presuming that the deciding official’s awareness of the EEO activity, alone, was
sufficient to establish that the EEO activity was a motivating factor in the
removal decision, but she failed to make any explicit finding to this effect. See
ID at 17.18
Although the deciding official’s acknowledgment that she was aware of the
appellant’s EEO complaint does constitute some evidence demonstrating potential
retaliatory intent, additional considerations, including the deciding official’s
denial of any retaliatory purpose, the temporal proximity between the removal
action and the EEO activity, the potential motive to retaliate by any other agency
officials, and the administrative judge’s credibility assessments, are also relevant.
See HCD (testimony of the deciding official denying that the appellant’s EEO
activity played any role in her removal decision); Pridgen, 2022 MSPB 31, ¶ 31
(identifying as relevant in analyzing the appellant’s EEO retaliation claim, among
other things, the appellant’s first level supervisor’s denial of any retaliatory intent
and the administrative judge’s implicit demeanor-based credibility findings
regarding the appellant’s second level supervisor’s lack of motive to retaliate).
Accordingly, we remand the appeal and direct the administrative judge to make a
specific finding, consistent with the standard identified in Pridgen, addressing
whether the appellant established that his EEO complaint was a motivating factor
in the agency’s decision to remove him.
The administrative judge must make new findings addressing whether
the agency retaliated against the appellant based on his protected
activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant also alleged below that the agency’s decision to remove him
was in reprisal for his whistleblowing activity. IAF, Tab 13 at 6-8. Specifically,
the appellant described his whistleblowing disclosure as his complaint to the
agency’s OIG on or about May 31, 2017, alleging, among other things, that his
supervisors and the senior DEOMI leadership team were bullying him, abusing
their power, micromanaging, and creating a hostile and toxic work environment,
leading to degraded morale and a loss of faith in leadership. Id. at 16-21; see
id. at 6-8. On petition for review, the appellant restates his argument that the
agency removed him in retaliation for his filing of an OIG complaint. PFR File,
Tab 1 at 25.19
In the initial decision, the administrative judge concluded that the appellant
failed to establish that he made a protected disclosure based on his OIG
complaint. ID at 19-21; IAF Tab 13 at 16-21. Although we agree that the
appellant failed to meet his burden of establishing that his OIG complaint
constituted a protected disclosure under 5 U.S.C. § 2302(b)(8), we now turn to
consider whether he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)
(i), (B), (C), or (D) when he filed his OIG complaint. See Fisher v. Department
of the Interior, 2023 MSPB 11, ¶ 8. Under the broadly worded provision of
5 U.S.C. § 2302(b)(9)(C), disclosing information to an agency’s OIG is protected,
regardless of the content of the complaint, as long as such disclosures are made
“in accordance with applicable provisions of law.” Id. The appellant alleged that
he filed his May 31, 2017 complaint with the agency’s Inspector General’s office
through the agency’s ordinary process for filing such complaints, and the agency
has not disputed that assertion. IAF, Tab 13 at 6 -7, 16-21. Accordingly, we find
that the appellant’s May 31, 2017 submission to OIG meets that broad standard.
We therefore find that the appellant’s disclosure to OIG constitutes protected
activity under section 2302(b)(9)(C).
Because the appellant established that he engaged in protected activity
under section 2302(b)(9)(C), he must next establish that the protected activity
was a contributing factor in his removal. See Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶ 13 (2015). To prove that a disclosure was a contributing
factor in a personnel action, the appellant need only demonstrate that the fact of,
or the content of, the disclosure was one of the factors that tended to affect the
personnel action in any way. Carey v. Department of Veterans Affairs ,
93 M.S.P.R. 676, ¶ 10 (2003).
One way to establish contributing factor is the knowledge/timing test.
Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff'd per
curiam, 353 F. App'x 435 (Fed. Cir. 2009) . This test allows an employee to
demonstrate that his prior protected activity was a contributing factor in the20
challenged action by showing that the official taking the personnel action knew of
the protected activity and took the personnel action within a period of time such
that a reasonable person could conclude that the protected activity was a
contributing factor in the action. Id. An appellant may also satisfy the
knowledge prong of the knowledge/timing test by proving that the official taking
the action had constructive knowledge of the disclosure, even if he did not have
actual knowledge. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014).
An appellant may establish constructive knowledge by showing that an individual
with actual knowledge of the disclosure influenced the official accused of taking
the retaliatory action. Id. The Board has held that, if an administrative judge
determines that an appellant has failed to satisfy the knowledge/timing test, the
administrative judge shall consider other evidence, such as evidence pertaining to
the strength or weakness of the agency's reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether they had a desire or motive to retaliate against the
appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012).
Here, the timing element of the knowledge/timing test is satisfied.
Specifically, the agency removed the appellant just shy of 22 months after he
filed his OIG complaint. IAF, Tab 9 at 24; Tab 13 at 6, 16-21; see Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) (noting that the Board has
held that a personnel action taken within approximately 1 to 2 years of the
appellant’s disclosure satisfies the contributing factor knowledge/timing test).
Regarding the knowledge prong of the test, because the administrative judge
failed to identify that the appellant’s OIG complaint was a protected activity, she
did not make a finding as to whether the deciding official was aware of his
complaint. ID at 19-21. At the hearing, the deciding official testified that she
was not aware of the fact that the appellant filed an OIG complaint at the time she
issued the removal decision, but that she later became aware of the OIG21
complaint at some point after the appellant was removed. HCD (testimony of the
deciding official).
Nevertheless, because the administrative judge did not evaluate the
contributing factor criterion, she did not make any other findings addressing
whether the deciding official may have been influenced by someone else with
knowledge of the appellant’s protected activity, i.e., whether she had constructive
knowledge of his complaint. In his response to the administrative judge’s
affirmative defense order, the appellant appears to allege that in August 2017,
another employee informed the appellant that he had spoken with the appellant’s
third-line supervisor (the deciding official’s first-line supervisor) about the
appellant’s OIG complaint. IAF Tab 13 at 7. The appellant proposed that his
third-line supervisor testify at the hearing regarding his “knowledge of and
involvement in the removal process for [a]ppellant,” but the request was denied
on the grounds that the testimony was not relevant or was duplicative. IAF, Tab
14 at 19; HCD. Consequently, based on the existing record, there is insufficient
information to determine whether the deciding official may have been influenced
by someone else with knowledge of the appellant’s protected activity, and we
must remand the appeal for the administrative judge to further develop the record
concerning whether the deciding official had constructive knowledge of the
appellant’s OIG complaint.7
If, on remand, the administrative judge determines that the appellant
established his prima facie case of whistleblowing, she shall then consider
whether the agency met its burden of proving by clear and convincing evidence
that it would have taken the same personnel action in the absence of the
appellant’s whistleblowing, consistent with the factors identified in Carr v. Social
Security Administration , 185 F.3d 1318 (Fed. Cir. 1999). See id. at 1323
(concluding that, in determining whether an agency has met its burden, the Board
7 If the administrative judge determines that the appellant did meet the knowledge
timing test, then the administrative judge shall address the alternative to the knowledge/
timing test set forth in Dorney, 117 M.S.P.R. 480, ¶ 15.22
will consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.) We make no findings
here as to whether the appellant can prove his prima facie case. We also do not
determine whether, if he does, the agency can meet its burden. Those decisions
can only be made in the first instance by the administrative judge after allowing
the parties to supplement the record and after making new findings regarding this
affirmative defense.8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.23 | Carrigan_RobertAT-0752-20-0192-I-1_Remand_Order.pdf | 2024-07-30 | ROBERT CARRIGAN v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0752-20-0192-I-1, July 30, 2024 | AT-0752-20-0192-I-1 | NP |
829 | https://www.mspb.gov/decisions/nonprecedential/Holmes_GaryAT-4324-23-0323-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY HOLMES,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-4324-23-0323-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary Holmes , Fairburn, Georgia, pro se.
Labor and Employee Relations Division , Fort Lee, 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 his appeal for lack of jurisdiction. On petition for review, the appellant
seems to suggest that the Board should take jurisdiction over a dispute with his
private employer, possibly because the appellant is himself a veteran. Petition for
Review File, Tab 1 at 4. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Holmes_GaryAT-4324-23-0323-I-1_Final_Order.pdf | 2024-07-30 | GARY HOLMES v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-4324-23-0323-I-1, July 30, 2024 | AT-4324-23-0323-I-1 | NP |
830 | https://www.mspb.gov/decisions/nonprecedential/Ramirez_George_E_NY-315H-20-0227-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE E. RAMIREZ,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
NY-315H-20-0227-I-1
DATE: July 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
George E. Ramirez , Bayonne, New Jersey, pro se.
Kristin Murrock , Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination and individual right of action (IRA) appeal for lack of
jurisdiction. On petition for review, the appellant argues that the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge2 “was wrong for requiring documentation relevant to the [d]iscovery phase
while trying to establish [j]urisdiction” and “for interpreting Federal code as
meaning that [he] was not an ‘employee’ within the [a]gency’s jurisdiction.”
Petition for Review (PFR) File, Tab 1 at 3. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify why the appellant failed to meet his jurisdictional burden
for an IRA appeal and VACATE the administrative judge’s findings regarding
contributing factor, we AFFIRM the initial decision.
The appellant held a series of temporary excepted service appointments
with the agency from October 2019 until his termination in March 2020. Initial
Appeal File (IAF), Tab 8 at 23, 26, 43, 45. He filed a complaint alleging reprisal
for whistleblowing activity with the Office of Special Counsel (OSC) and, after
OSC closed its file on his allegations, filed an appeal challenging his termination
and arguing that he was “retaliated against for exercising” his rights under the
Occupational Safety and Health Act (OSHA). IAF, Tab 1 at 3, 5, 11. The
administrative judge issued an initial decision dismissing the appeal because the
2 Although the appellant states that the “Agency was wrong,” we interpret these
arguments as referring to alleged errors in the initial decision. Petition for Review File,
Tab 1 at 3.2
appellant failed to nonfrivolously allege that he had made a protected disclosure
that was a contributing factor to his termination or that he met the definition of an
“employee” with chapter 75 appeal rights. IAF, Tab 10, Initial Decision (ID)
at 1, 6.
The appellant failed to nonfrivolously allege that he made a protected disclosure.
The dispositive issue regarding whether the appellant established Board
jurisdiction over his IRA appeal is whether the allegations he set forth in his OSC
complaint constitute a protected disclosure. Under the Whistleblower Protection
Enhancement Act of 2012, the Board has jurisdiction over an IRA appeal if the
appellant has exhausted his administrative remedies before OSC,3 and makes
nonfrivolous allegations that (1) he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and (2) the protected disclosure or activity was a contributing
factor in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (2016). After the issuance of the initial decision, the U.S. Court of Appeals
for the Federal Circuit clarified 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, 1369 (Fed. Cir. 2020). The Board “may not
deny jurisdiction by crediting the agency’s interpretation of the evidence as to
whether the alleged disclosures fell within the protected categories or whether the
disclosures were a contributing factor in an adverse personnel action.” Id.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
3 Here, the administrative judge found, and we agree, that the appellant met his burden
of establishing that he exhausted his administrative remedies before OSC. ID at 5; IAF,
Tab 7 at 5-21.3
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Mudd v.
Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 8 (2013). 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, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety. Salerno,
123 M.S.P.R. 230, ¶ 6. The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Id.; see El v. Department of Commerce , 123 M.S.P.R.
76, ¶ 6 (2015) (stating that vague, conclusory, unsupported, and pro forma
allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard
needed to establish the Board’s jurisdiction over an IRA appeal), aff’d,
663 F. App’x 921 (Fed. Cir. 2016).
Although the jurisdiction order provided detailed instructions to the
appellant about the information that he was required to include in his
jurisdictional statement, he submitted into the record only a copy of his OSC
complaint and close-out letter without any accompanying explanation or
argument. IAF, Tab 3 at 7-8, Tab 7 at 5-21. The appellant alleged in his OSC
complaint that he had engaged in protected activity on March 11, 2020, when he
texted his first-level supervisor that he would be taking the following 2 days off
“because there were people in the office who were visibly sick.” Id. at 14. He
alleged that he was “retaliated against for exercising” unspecified OSHA rights
because his supervisor had responded that it was “reprehensible” that he had used
OSHA as “backing” for his “erroneous claims.” Id. The appellant argued that he
was terminated for “invoking OSHA” and that the fact that his office had been
closed since March 18, 2020, due to the COVID-19 pandemic supported his
claim. Id.4
To the extent that the administrative judge relied on the agency’s
arguments and evidence in finding that the appellant failed to make a
nonfrivolous allegation that he had made a protected disclosure that was a
contributing factor in his termination, she erred. ID at 5-6; see Hessami,
979 F.3d at 1369. In particular, the administrative judge cited the agency’s
argument that the official who terminated the appellant was not the first -level
supervisor to whom he had made the alleged disclosure in finding that the
appellant failed to allege how the official was aware of his disclosure. ID at 6.
We vacate this finding regarding contributing factor. Nonetheless, the appellant’s
allegation regarding his purported disclosure related to some unspecified OSHA
violation or protection was vague and facially insufficient irrespective of the
agency’s evidence and argument, and the administrative judge’s discussion in this
regard was harmless. We agree with the administrative judge that the appellant’s
conclusory allegation that he was terminated for exercising his OSHA rights fails
to identify any purported actions the agency took or failed to take in violation of
OSHA. ID at 6. We find that the appellant’s nonspecific allegations concerning
OSHA do not constitute a nonfrivolous allegation of a protected disclosure of a
violation of law, rule, or regulation or any of the categories of wrongdoing
specified in 5 U.S.C. § 2302(b)(8). See El, 123 M.S.P.R. 76, ¶ 6.
To the extent that the appellant argued in his OSC complaint that he was
retaliated against for engaging in protected activity by filing a complaint
regarding OSHA, he has not identified any complaint he filed before his
termination that was “granted by any law, rule or regulation.” IAF, Tab 7 at 12,
14; see 5 U.S.C. § 2302(b)(9)(A)(i). In his OSC complaint, the appellant stated
that he had “[r]eported” the matter to OSHA on April 14, 2020. IAF, Tab 7 at 12.
He has not submitted a copy of his report into the record or provided any
information regarding its contents. By his own acknowledgment, any complaint
that he filed with OSHA would have been almost 1 month after the effective date
of his termination. IAF, Tab 7 at 12, Tab 8 at 23. Therefore, we find no error in5
the administrative judge’s analysis of the appellant’s allegations only as a
purported protected disclosure made pursuant to 5 U.S.C. § 2302(b)(8).
Although the appellant asserts that the administrative judge improperly
required “documentation relevant to the [d]iscovery phase,” he does not explain
what documentation he believes he would receive through discovery that would
be relevant to the jurisdictional determination. PFR File, Tab 1 at 3. Moreover,
he provides no additional information on review regarding his purported
disclosure, even after the administrative judge explained that he had failed to
provide the evidence and argument required by the jurisdictional order and
instead submitted only a copy of his OSC complaint. ID at 6; IAF, Tab 3 at 7-8.
Because we find that the appellant failed to nonfrivolously allege that he made a
protected disclosure or otherwise engaged in protected activity, he cannot meet
his burden on jurisdiction, and the administrative judge properly dismissed the
appeal for lack of jurisdiction. See Graves v. Department of Veterans Affairs ,
123 M.S.P.R. 434, ¶ 22 (2016) (holding that the administrative judge correctly
dismissed the IRA appeal for lack of jurisdiction when the appellant failed to
make nonfrivolous allegations that he made protected disclosures or otherwise
engaged in protected activity).
The appellant failed to nonfrivolously allege that he meets the definition of an
“employee” with chapter 75 appeal rights.
The appellant’s general arguments on review provide no basis for
disturbing the administrative judge’s finding that he failed to nonfrivolously
allege that he met the definition of an “employee” in the excepted service under
5 U.S.C. § 7511(a)(1)(C). PFR File, Tab 1 at 3, ID at 3-5; see Ramirez-Evans v.
Department of Veterans Affairs , 113 M.S.P.R. 297, ¶ 9 (2010).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 | Ramirez_George_E_NY-315H-20-0227-I-1_Final_Order.pdf | 2024-07-30 | GEORGE E. RAMIREZ v. DEPARTMENT OF COMMERCE, MSPB Docket No. NY-315H-20-0227-I-1, July 30, 2024 | NY-315H-20-0227-I-1 | NP |
831 | https://www.mspb.gov/decisions/nonprecedential/Battles_KayDC-0752-20-0742-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAY BATTLES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-20-0742-I-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kay Battles , Dallas, Texas, pro se.
Asmaa Abdul-Haqq , Esquire, and Mary Bradley , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a GS-12 Management Analyst. Initial Appeal File
(IAF), Tab 1 at 7. On January 24, 2014, the appellant signed a Voluntary
Separation Incentive Payment (VSIP) buyout application. IAF, Tab 5 at 20. She
later received a letter dated February 18, 2014, approving her VSIP application.
IAF, Tab 1 at 8. On February 25, 2014, the appellant signed a VSIP agreement.
IAF, Tab 5 at 21. She resigned pursuant to the VSIP, effective February 28,
2014. IAF, Tab 1 at 5-7. The appellant received a lump sum payment of
$18,796.00 in exchange for her resignation. Id. at 7.
In March 2020, the appellant filed a complaint with the Office of Special
Counsel alleging various prohibited personnel practices in connection with her
resignation. IAF, Tab 6 at 4-5, 8. The appellant asserted that she competed for
positions within the agency since her separation and was not reinstated or
otherwise reemployed. Id. at 4.2
On July 9, 2020, the appellant filed a Board appeal alleging that her
second-line supervisor and an agency Human Resources Manager misled her into
resigning. IAF, Tab 1 at 5. In particular, the appellant alleged that she “did not
apply for voluntary separation incentive or retirement and did not ask to be
separated.” Id. She claimed that her second-line supervisor and another agency
official previously informed her that she was not eligible for a VSIP. Id. She
also claimed that her second-line supervisor presented her with the February 18,
2014 letter for VSIP approval and told her to “disregard the letter in its entirety
except one sentence that reads [she] could be reemployed within or after one
year: since [she] was eligible to receive a waiver and be reemployed or
non-competitively reassigned.” Id. (punctuation as in original).
The administrative judge informed the appellant that the Board may not
have jurisdiction over the appeal, explained her burden of proof for an
involuntary resignation/retirement appeal, and ordered her to file evidence and
argument regarding jurisdiction. IAF, Tab 7. In response to the order, the
appellant repeated that agency officials misled her and “fraudulently asked [her]
to sign the application for the VSIP.” IAF, Tab 8 at 4-6. In an initial decision,
the administrative judge found that the appellant failed to nonfrivolously allege
that her resignation was involuntary. IAF, Tab 10, Initial Decision (ID) at 8-11.
Therefore, he dismissed the appeal for lack of jurisdiction without holding the
appellant’s requested hearing. IAF, Tab 1 at 2; ID at 1, 11.
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 3. The appellant has filed a reply to the agency’s response. PFR File,
Tab 4.3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly determined that the appellant failed to
nonfrivolously allege that her resignation was involuntary.
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). In an involuntary resignation
appeal such as this one, the appellant has the burden of proving the Board’s
jurisdiction by a preponderance of the evidence. Freeborn v. Department of
Justice, 119 M.S.P.R. 290, ¶ 9 (2013); 5 C.F.R. § 1201.56(b)(2)(i)(A). If an
appellant makes a nonfrivolous allegation of Board jurisdiction over an appeal,
she is entitled to a jurisdictional hearing. Yiying Liu v. Department of
Agriculture, 106 M.S.P.R. 178, ¶ 8 (2007). In assessing whether an appellant has
made nonfrivolous allegations entitling her to a hearing, an administrative judge
may consider the agency’s documentary submissions; however, to the extent the
agency’s evidence contradicts the appellant’s otherwise adequate prima facie
showing of jurisdiction, the administrative judge may not weigh evidence and
resolve conflicting assertions, and the agency’s evidence may not be dispositive.
Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
On review, the appellant reiterates her argument that she was fraudulently
misled into signing the VSIP application and resigning on the basis of a verbal
offer of reinstatement or reassignment from her second-line supervisor. PFR File,
Tab 1 at 4, 7. An employee-initiated action, such as a resignation, is presumed to
be voluntary, and thus outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation,
however, is equivalent to a forced removal and therefore is within the Board’s
jurisdiction. Id. To overcome the presumption that a resignation is voluntary, the
employee must show that it was the result of the agency’s misinformation or
deception or that she was coerced by the agency to resign. Id., ¶ 19.4
The appellant does not argue that she was coerced into resigning. Rather,
she argues that her resignation resulted from misinformation or deception. PFR
File, Tab 1; IAF, Tab 1 at 5, Tab 8 at 4-5. A resignation is involuntary if the
agency made misleading statements upon which the employee reasonably relied to
her detriment. Paige v. U.S. Postal Service , 106 M.S.P.R. 299, ¶ 9 (2007) . The
administrative judge found that the appellant failed to nonfrivolously allege that
her resignation was involuntary.2 ID at 8-10. We agree.
The appellant first reasserts that her second-line supervisor and another
agency official informed her that she was not eligible for a VSIP. PFR File,
Tab 1 at 5. The gist of this argument is that she could not have applied for a
VSIP once the agency made that determination, and thus her election of a VSIP
was invalid. Id.; IAF, Tab 1 at 5, Tab 4 at 15. We are not persuaded.
The administrative judge found this claim to be inconsistent with the
appellant’s other claims regarding the VSIP, such as her claims that she was
processed for a VSIP “in lieu of family leave or a permanent inter-governmental
transfer.” ID at 10; IAF, Tab 4 at 17. The record reflects that the appellant
signed a VSIP application on January 24, 2014, received a VSIP approval letter
dated February 18, 2014, and signed a VSIP payment agreement on February 25,
2014. IAF, Tab 1 at 8, Tab 5 at 20-21. Further, the appellant acknowledged she
received a VSIP payment upon her resignation. IAF, Tab 1 at 7, Tab 4 at 15, 18,
2 The administrative judge found that the “unrefuted record demonstrates that . . . the
appellant expressly certified in writing that she was voluntarily resigning” based on
evidence submitted by the agency. ID at 8; IAF, Tab 5 at 21. The administrative
judge’s conclusion, without more, was error because an administrative judge may not
weigh evidence or resolve conflicting assertions regarding disputed facts material to the
question of jurisdiction without affording the appellant the opportunity for a hearing.
Ferdon, 60 M.S.P.R. at 329. However, we find this error harmless because, as
discussed below, even taking her allegations as true, we agree with the administrative
judge’s conclusion that the appellant failed to make a nonfrivolous allegation of Board
jurisdiction over her appeal. See 5 C.F.R. § 1201.4(s) (defining a nonfrivolous
allegation as an assertion that, if proven, could establish the matter at issue). Therefore,
the administrative judge’s error did not affect the appellant’s substantive rights and
does not constitute reversible error. See Panter v. Department of Air Force ,
22 M.S.P.R. 281, 282 (1984).5
Tab 8 at 5. We agree with the administrative judge to the extent he found that no
reasonable person who believed she was not eligible for a VSIP would sign the
VSIP application and payment agreement and also accept payment.
The appellant also alleges that, during the course of the VSIP process, her
second-line supervisor orally offered her return rights under 5 C.F.R.
§ 352.806(c)(2)(3).3 PFR File, Tab 1 at 4, 7. The appellant asserts that she
agreed to resign based on her second-line supervisor’s offer that she would be
returned to her position or be non-competitively reassigned within and/or after
one year “[i]n compliance with the letter from the Assistant to the Secretary of
the Army the paragraph that states ‘on a case by case basis [she] could be
approved for reemployment within or after one year.’” PFR File, Tab 1 at 4; IAF,
Tab 1 at 5, Tab 8 at 4-5. In construing the terms of a written agreement, the
words of the agreement itself are of paramount importance, and parol evidence
will be considered only if the written agreement is ambiguous. De Luna v.
Department of the Navy , 58 M.S.P.R. 526, 529-30 (1993). The fact that an
agreement is silent as to a term does not mean it is ambiguous. Id. When a
contract is silent as to a term, the issue covered by that term is in effect removed
from the Board’s jurisdiction, and the Board lacks the authority to unilaterally
modify the material terms in a settlement agreement. Id., (citing Harrison v. VA ,
44 MSPR 594, 599 (1990)).
The administrative judge found no information in the record to suggest that
the appellant was entitled to reinstatement or reemployment following her
separation. ID at 9. We agree. The agreement here does not include any
documents referencing return rights under 5 C.F.R. § 352.806(c)(2)(3) or a
non-competitive reassignment. Rather, the VSIP agreement she signed in
February 2014 provides, in relevant part, that:
3 Section 352.806 provides reinstatement rights under the Taiwan Relations Act. The
appellant does not allege, and there is no evidence in the record to show, that this
regulation applies to either the appellant or her prior employment with the agency.6
[A]n employee who receives a buyout, and accepts employment with
the Government of the United States . . . within 5 years after the date
of separation on which payment of the buyout is based, shall be
required to repay the entire amount of the buyout (before taxes and
deductions) to the Federal agency that paid the buyout. . . . [A] DoD
employee who receives a buyout is prohibited from registering in the
DoD Priority Placement Program and may not be reemployed by the
Department of Defense in any capacity for a 12-month period.
IAF, Tab 5 at 21.
The appellant signed the agreement indicating that her VSIP application
was voluntary, she was counseled, and she freely agreed to and fully understood
the conditions and terms of the VSIP. Id. Because the parties’ written agreement
is not ambiguous and does not refer to return rights or non-competitive
reassignment, the appellant cannot now attempt to unilaterally insert such terms
into the agreement. Therefore, we find that the appellant failed to nonfrivolously
allege that the agency made misleading statements upon which she reasonably
relied to her detriment.
To the extent that the appellant argues that her second-line supervisor’s
offer of reemployment is consistent with the February 18, 2014 letter from the
agency approving the application for a VSIP, we find her argument unavailing.
PFR File, Tab 1 at 4-5. While the letter allowed for case-by-case exceptions, it
informed the appellant that she could not be reemployed by the Federal
Government for 5 years from the date of her separation unless she repaid the
entire amount of her VSIP payment and could not be reemployed by the
Department of Defense in any capacity for a 12-month period from the date of her
separation. IAF, Tab 1 at 8. Therefore, we agree with the administrative judge
that the appellant failed to nonfrivolously allege that her resignation was
involuntary.
The appellant also alleges that the agency improperly offered the VSIP
without providing “options for family leave or any realistic alternatives.” PFR
File, Tab 1 at 5, 7. A resignation decision made “with blinders on,” based on7
misinformation or lack of information, cannot be binding as a matter of
fundamental fairness and due process. Freeborn, 119 M.S.P.R. 290, ¶ 10. To the
extent that the appellant is alleging that her resignation was involuntary because
she did not have enough information about family leave to make an informed
decision, there is nothing alleged by the appellant or present in the record to
indicate that the agency knew or should have known the appellant needed
clarification on family leave options or that the agency supplied the appellant
misinformation regarding family leave options. See Holser v. Department of the
Army, 77 M.S.P.R. 92, 95 (1997) (finding an employee’s incorrect belief that he
had to retire to be eligible for disability benefits did not make retirement
involuntary because he did not establish that he received inadequate information
from the agency). Therefore, the appellant has not raised a nonfrivolous
allegation of involuntariness on the basis of inadequate information.
Further, the appellant argues that the agency obstructed her applications for
Federal employment following her resignation. PFR File, Tab 1 at 6; IAF, Tab 1
at 6. To the extent the appellant argues that the Board has jurisdiction over her
nonselections, it is well settled that the Board lacks direct jurisdiction under
5 U.S.C. § 7512 over an employee’s nonselection for a position. See Gryder v.
Department of Transportation , 100 M.S.P.R. 564, ¶ 9 (2005).
The administrative judge properly determined that absent an otherwise
appealable action the Board lacks jurisdiction over claims that the agency
committed some prohibited personnel practices and/or harmful procedural errors
in the context of her decision to resign.4 ID at 10; see Penna v. U.S. Postal
Service, 118 M.S.P.R. 355, ¶ 13 (2012) (finding that, in the absence of an
otherwise appealable action, the Board lacks jurisdiction over claims of harmful
error and prohibited personnel practices); Wren v. Department of the Army ,
2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982) (explaining
4 The appellant did not allege that her resignation was related to any disclosures of
information or protected activity over which the Board might have jurisdiction as an
individual right of action appeal. IAF, Tab 1 at 4, Tab 6 at 4-5, 8.8
that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction).
Accordingly, because the appellant’s arguments on review fail to constitute
a nonfrivolous allegation that her resignation was involuntary, we affirm the
dismissal of her involuntary resignation appeal for lack of jurisdiction.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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
5 Since the Board lacks jurisdiction to review this case, we need not reach the
appellant’s arguments on review regarding the timeliness of her appeal. PFR File,
Tab 1 at 4-5.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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,10
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 | Battles_KayDC-0752-20-0742-I-1_Final_Order.pdf | 2024-07-29 | KAY BATTLES v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0742-I-1, July 29, 2024 | DC-0752-20-0742-I-1 | NP |
832 | https://www.mspb.gov/decisions/nonprecedential/Harris_Charles_J_DC-1221-20-0557-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES JAMES HARRIS, III,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-20-0557-W-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles James Harris, III , Alexandria, Virginia, pro se.
Mary Bradley and Richard Floyd Kane , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant nonfrivolously alleged that he engaged in a protected
activity and to supplement the administrative judge’s analysis as to whether he
nonfrivolously alleged contributing factor, we AFFIRM the initial decision.
BACKGROUND
The appellant is an Information Technology Specialist with the Department
of Defense. Initial Appeal File (IAF), Tab 1 at 1. He filed a complaint with the
Office of Special Counsel (OSC) alleging retaliation for protected disclosures and
activity. Id. at 24. Specifically, he alleged to OSC that he was retaliated against
for “disagreeing with coworkers, expressing concerns regarding negative
interactions with coworkers, complaining about discrimination by supervisors,
protesting [his] performance appraisal, filing two MSPB appeals, filing two OSC
complaints, and communicating concerns to a Member of Congress.” Id. In
reprisal for these alleged disclosures and activities, he alleged that he received a
lower-than-expected performance rating and that he was reassigned, subjected to
a change in work duties and responsibilities, and denied a certification. Id. The
appellant sought to supplement his OSC complaint with additional allegations,
including assertions that his supervisor created a hostile work environment,2
former and current supervisors provided negative references to prospective
employers, and the agency intended to revoke his security clearance. Id. at 22.
However, OSC declined to consider these allegations and informed the appellant
that he must file a new complaint to have them reviewed. Id.
Following OSC’s closure of his complaint, the appellant filed a Board
appeal, alleging the same retaliation outlined in his OSC complaint. Id. at 5. The
appellant attached numerous documents, including a memorandum outlining an
administrative grievance he filed, as well as an initial decision from a prior Board
appeal. Id. at 9-20. The administrative judge notified the appellant of his burden
of proof on jurisdiction, including how to establish that his alleged protected
disclosures and activities were a contributing factor in a personnel action
pursuant to the knowledge/timing test as well as under alternative methods. IAF,
Tab 3 at 5. After both parties responded, the administrative judge dismissed the
appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1.
The administrative judge found that the appellant exhausted his
administrative remedies with regard to most of his alleged personnel actions. ID
at 4-5. Furthermore, the administrative judge found that the appellant exhausted
his claims that he made protected disclosures and engaged in protected activity.
ID at 5. However, the administrative judge found that the appellant failed to
exhaust his allegations to OSC that he made after it issued him a preliminary
determination letter; specifically, his complaints regarding his security clearance,
the hostile work environment, and the negative references. Id. The
administrative judge then found that the appellant failed to nonfrivolously allege
that he made a protected disclosure or engaged in protected activity. ID at 6-8.
Finally, the administrative judge found that, because the appellant failed to
nonfrivolously allege a protected disclosure or activity, he likewise failed to
nonfrivolously allege that protected disclosures or activity were a contributing
factor in any personnel action. ID at 8-9. Because the appellant failed to3
establish jurisdiction over his appeal, the administrative judge found that the
appellant was not entitled to a hearing. ID at 9-10.
The appellant has filed a petition for review, alleging that he is being
denied a hearing, that the agency advised him he could file a Board appeal after
going to OSC, and that the administrative judge failed to consider all of the facts.
Petition for Review (PFR) File, Tab 1 at 3-4. The agency has responded to his
petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that 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 the
disclosure or protected activity was a contributing factor in the agency’s decision
to take a personnel action. Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6
(2014).
The administrative judge correctly found that the appellant exhausted some, but
not all, of his alleged personnel actions with OSC.
As set forth above, the administrative judge found that the appellant
exhausted some, but not all, of the alleged personnel actions. ID at 4-5. On
review, the appellant states that he filed a complaint with OSC prior to filing his
Board appeal, but he does not provide a basis for disturbing the administrative
judge’s findings on the issue of exhaustion.
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 the4
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. Here, the appellant raised many of the
alleged protected disclosures and activities and personnel actions outlined above
to OSC. IAF, Tab 1 at 24. However, he raised certain personnel actions—in
particular, the negative references, revocation of security clearance, and hostile
work environment claims—to OSC after its preliminary determination letter, and
OSC declined to consider them. Id. at 22. Accordingly, we agree with the
administrative judge that the appellant has not exhausted these personnel actions.
See Davis v. Department of Defense , 103 M.S.P.R. 516, ¶ 10 (2006) (finding an
appellant must give OSC the opportunity to pursue an investigation into his
allegations).
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that he made a protected disclosure but erred in finding that
the appellant failed to nonfrivolously allege that he engaged in a protected
activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant failed to nonfrivolously allege that he made a
protected disclosure.
The administrative judge held that the appellant failed to nonfrivolously
allege that he made a protected disclosure. ID at 6. The appellant does not
challenge this finding on review, and we agree with the administrative judge’s
finding on this issue. Protected whistleblowing occurs when an appellant makes a
disclosure that he reasonably believes evidences a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health and safety. Mudd v.5
Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5 (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 a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.
Vague, conclusory, and unsupported allegations do not satisfy the Board’s
nonfrivolous pleading standard. Rebstock Consolidation v. Department of
Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015).
The appellant here has only cited to vague and conclusory allegations and
has failed to identify any specific protected disclosures. Essentially, the only
evidence submitted is a table listing 23 emails between himself and coworkers.
IAF, Tab 5 at 5-7. The table merely states the subjects of the emails and does not
include the actual emails themselves. Id. Moreover, none of the email subjects
suggest that he was disclosing information he reasonably believed evidenced the
type of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). For example, the email
subjects discuss how he was seeking support to do his job, forced to take
unnecessary classes, and that someone entered his office without consent, which
he challenges as a breach of “common courtesy.” Id. Moreover, he alleges that
he “push[ed] back” about his lower-than-expected performance rating. Id. at 9.
However, he does not suggest that his performance rating was in violation of any
law, rule, or regulation. He similarly alleged, without further information, that he
communicated “concerns to a Member of Congress.” IAF, Tab 1 at 5, 24;
see Rebstock Consolidation , 122 M.S.P.R. 661, ¶ 12 (finding unsupported
allegations do not satisfy the nonfrivolous pleading standard). As such, we agree
with the administrative judge that the appellant has failed to demonstrate or
suggest that he made any disclosure that evidenced a violation of a law, rule, or
regulation, or any other condition set forth in 5 U.S.C.§ 2302(b)(8). Thus, we6
agree that he has failed to make a nonfrivolous allegation of a protected
disclosure.
The appellant made a nonfrivolous allegation that he engaged in
protected activity by filing with OSC.
The appellant alleged that he engaged in several different protected
activities. He attached an administrative grievance memorandum, which notes
that he is “grieving the process and guidance used to make the determination of”
his performance rating at a level 3, as opposed to a level 5. IAF, Tab 1 at 9. He
further alleged that he filed two Board appeals prior to the instant appeal. Id.
at 5, 24. The appellant attached a prior Board appeal wherein he challenged a
realignment of his position without a loss in pay or grade. Id. at 10-12. He did
not provide the details of his other Board appeal. The administrative judge held
that the appellant failed to allege that this grievance or prior Board appeals
constituted protected activity under 5 U.S.C. § 2302(b)(9)(C). ID at 8. We agree.
Under the Whistleblower Protection Enhancement Act of 2012, the Board
has IRA jurisdiction over claims of reprisal for filing appeals, complaints, or
grievances seeking to remedy a violation of 5 U.S.C. § 2302(b)(8), but not to
other types of appeals, complaints, or grievances that do not concern remedying a
violation of subparagraph (b)(8). 5 U.S.C. §§ 2302(b)(9)(A)(i)-(ii); Mudd,
120 M.S.P.R. 365, ¶¶ 6-7. Nothing included in the appellant’s brief grievance
memorandum or prior Board appeals suggest that they sought to remedy a
violation of section 2302(b)(8), and thus, the appellant has failed to raise a
nonfrivolous allegation of Board jurisdiction over these alleged protected
activities. Id.
However, the appellant additionally alleged, both to OSC and below, that
the agency retaliated against him for filing “two [prior] OSC complaints.” IAF,
Tab 1 at 5, 24. The administrative judge found that the appellant failed to
nonfrivolously allege that he engaged in protected activity because he failed to
provide any evidence of what the OSC complaints concerned, or even of their7
existence. ID at 8. The appellant does not challenge this finding on review.
Nonetheless, because jurisdiction may be raised at any time during a proceeding,
Morgan v. Department of the Navy , 28 M.S.P.R. 477, 478 (1985), we address
whether the appellant’s allegation that he filed two OSC complaints constitutes a
nonfrivolous allegation that he engaged in protected activity. Under the broadly
worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosing information to OSC is
protected regardless of its content, as long as such disclosures are made “in
accordance with applicable provisions of law.” Thus, the appellant has
sufficiently alleged that he disclosed information to OSC. Accordingly, we
modify the initial decision to find that the appellant nonfrivolously alleged that he
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing two prior
OSC complaints.
The appellant failed to nonfrivolously allege that his protected activity was a
contributing factor in any personnel action.
The next jurisdictional inquiry is whether the appellant has made a
nonfrivolous allegation that he engaged in protected activity that was a
contributing factor in the agency’s decision to take or fail to take a personnel
action. Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8
(2016), overruled on other grounds by Requena v. Department of Homeland
Security, 2022 MSPB 39. The administrative judge found that, because the
appellant failed to nonfrivolously allege that he made a protected disclosure or
engaged in protected activity, he could not nonfrivolously allege that the
disclosures or activity were a contributing factor in the personnel actions. ID
at 8-9. Although we agree with the administrative judge’s conclusion that the
appellant failed to raise a nonfrivolous allegation of contributing factor, we
modify the initial decision to supplement the administrative judge’s analysis on
this issue.
One way an appellant may satisfy the contributing factor element at the
jurisdictional stage is by making nonfrivolous allegations that the official taking8
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, known as the
knowledge/timing test. See 5 U.S.C. § 1221(e)(1); Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446, ¶ 7 (2014). The record here does not include
any evidence or information regarding the appellant’s two prior complaints with
OSC. Moreover, the appellant has not alleged that any agency officials had
knowledge of his prior OSC complaints. Accordingly, we find that the appellant
has failed to allege knowledge of his protected activity, and thus that he has
failed to meet his jurisdictional burden on the contributing factor element through
the knowledge/timing test.
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 personnel
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 notified the appellant of this alternative method of
establishing contributing factor. IAF, Tab 3 at 5. The appellant suggested below
that his reassignment, one of the personnel actions at issue, was unwarranted.
IAF, Tab 5 at 8. Nonetheless, he provided no evidence that his prior OSC
complaints were directed at the individuals responsible for any of the personnel
actions at issue, or that these individuals had any desire or motive to retaliate
against him. Because the appellant had notice of both the knowledge/timing test
as well as the alternative method for establishing contributing factor, and because
it is the appellant’s burden to establish jurisdiction over his IRA appeal, we find
that he has failed to meet his burden of nonfrivolously alleging that his protected
activity was a contributing factor in any personnel action. See 5 C.F.R.9
§ 1201.57(b) (setting forth the appellant’s burden of proof in an IRA appeal);
IAF, Tab 3 at 5.
The appellant’s remaining arguments are unpersuasive.
The appellant on review argues that he was denied a hearing that he is
entitled to. PFR File, Tab 1 at 3. In an IRA appeal, an appellant is not entitled to
a hearing on the threshold issue of jurisdiction because the Board has jurisdiction
over an IRA appeal if the appellant makes nonfrivolous allegations that the
elements of his claim are satisfied and whether allegations are nonfrivolous is
determined on the written record. Shope v. Department of the Navy ,
106 M.S.P.R. 590, ¶ 5 (2007). If the appellant meets his burden of proof on
jurisdiction over his IRA appeal, he is entitled to a hearing on the merits. Id.
Finally, the appellant argues that all of the facts were not considered by the
administrative judge. PFR File, Tab 1 at 4. 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. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 15
(2016). In any event, the appellant has not identified any particular evidence that
the administrative judge may have overlooked that might affect the outcome of
this appeal. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (finding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis to reverse an initial decision).
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 the12
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 14
Contact information for the courts of appeals can be 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 | Harris_Charles_J_DC-1221-20-0557-W-1_Final_Order.pdf | 2024-07-29 | null | DC-1221-20-0557-W-1 | NP |
833 | https://www.mspb.gov/decisions/nonprecedential/Jones_Derrick_J_DC-1221-23-0074-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK JONES,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-23-0074-W-1
DATE: July 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
Derrick Johnell Jones , Portsmouth, Virginia, pro se.
Trudy V. Murphy , 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.
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,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant is an Air Conditioning Equipment Mechanic with the Naval
Facilities Engineering Systems Command (NAVFAC) Mid-Atlantic in Norfolk,
Virginia. Initial Appeal File (IAF), Tab 1 at 1, 6. According to the appellant, he
sent an email to a staff member in NAVFAC’s Human Resources Office (HRO)
on March 26, 2021, which led to an agency investigation. Id. at 34. The
appellant alleged to the individual assigned to investigate his concerns that his
first-level supervisor accessed an agency account assigned to the appellant.
Petition for Review (PFR) File, Tab 1 at 8. The appellant further alleged to the
investigator that his first-level supervisor used that access to complete a
certification on the appellant’s behalf, falsely indicating that the appellant had
completed “Operational Security for Control Systems” training. Id.; IAF, Tab 1
at 51 n.1. The appellant also asserted that his first-level supervisor was
embarrassed during an unrelated incident when, during a meeting with the
appellant and his first- and second-level supervisors on October 25, 2021, it was
revealed that his first-level supervisor had made a false statement regarding the
appellant’s work schedule.2 IAF, Tab 1 at 40, 42, 51.
¶3On January 5, 2022, the appellant filed a whistleblower reprisal complaint
with the Office of Special Counsel (OSC), alleging that, between April and
October 2021, the agency took multiple personnel actions against him in
retaliation for his March 26, 2021 email and the embarrassment his first-level
supervisor suffered on October 25, 2021. Id. at 4, 28-43. According to the
appellant, between September and December 2021, he also reported some of his
2 The appellant does not specifically explain the supervisory role of the individual we
have identified here as his second-level supervisor. We have so identified this
individual for the clarity and readability of this decision but recognize that he may be
higher in the appellant’s chain of command. IAF, Tab 1 at 40, 51.2
concerns about agency wrongdoing to a U.S. Representative, the agency’s equal
employment opportunity (EEO) office, and the U.S. Department of Labor (DOL).
Id. at 32. He also disclosed to OSC his belief that the agency had committed
other prohibited personnel practices by violating regulations implementing the
Family and Medical Leave Act of 1993 (FMLA) and had endangered his life by
failing to adequately address an infectious disease outbreak. Id. at 16-25, 44-47.
¶4On September 8, 2022, OSC issued a letter notifying the appellant that it
had closed its investigation into his claims and that he could file an appeal with
the Board. Id. at 51-52. The appellant filed the instant appeal. Id. at 4.
¶5The administrative judge notified the appellant of his jurisdictional burden
and twice ordered him to file evidence and argument on the jurisdictional issue.
IAF, Tabs 5, 11. The appellant did not respond to the first order. In response to
the second order, he stated that all information needed to establish jurisdiction
could be found in his initial appeal. IAF, Tab 12 at 4. The agency argued that the
appellant failed to meet his jurisdictional burden, and the administrative judge
should therefore dismiss the appeal. IAF, Tabs 9, 13.
¶6The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 14, Initial Decision (ID) at 1-2, 7. She generally
found that the appellant had exhausted his OSC remedy, but did not specifically
identify the alleged protected activity, disclosures, or personnel actions that he
raised with OSC. ID at 4-5. Despite her exhaustion finding, the administrative
judge concluded that the appellant failed to establish jurisdiction because he did
not make a nonfrivolous allegation that he engaged in a protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). ID at 5-7.
¶7The appellant has filed a petition for review. PFR File, Tab 1. The agency
has filed a response, and the appellant has replied. PFR File, Tabs 3-4. For the
following reasons, we find that the appellant established jurisdiction over his IRA
appeal and remand this appeal to the regional office for adjudication on the
merits.3
DISCUSSION OF ARGUMENTS ON REVIEW
¶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 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 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). McCray v. Department of the Army , 2023 MSPB 10, ¶ 11. Any doubt
or ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 6.
The appellant proved by preponderant evidence that he exhausted with OSC his
March 26, 2021 HRO email and disclosures during the following investigation,
and the October 25, 2021 meeting.
¶9An employee seeking corrective action for whistleblower reprisal is
required to seek corrective action from OSC before seeking corrective action from
the Board. 5 U.S.C. § 1214(a)(3); Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 5. The substantive requirements of exhaustion are met
when an appellant has provided OSC with a sufficient basis to pursue an
investigation. Chambers, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited
to those issues that have been previously raised with OSC. Id. An appellant may
give a more detailed account of his whistleblowing activities before the Board
than he did to OSC. Id. An appellant may demonstrate exhaustion through his
initial OSC complaint or correspondence with OSC. Id., ¶ 11. In the alternative,
exhaustion may be proven through other sufficiently reliable evidence, such as an
affidavit or declaration attesting that the appellant raised with OSC the substance
of the facts in his Board appeal. Id. The appellant must prove exhaustion with
OSC by preponderant evidence, not just present nonfrivolous allegations of
exhaustion. Id. (citing 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.57(c)(1)). 4
¶10Below, the administrative judge generally found that the appellant had
shown by preponderant evidence that he exhausted his claims with OSC because
he had submitted his OSC closure letter and his OSC whistleblower reprisal
complaint.3 ID at 4-5. She proceeded to identify the activity at issue as the
March 26, 2021 HRO email, a complaint to a U.S. Representative, and EEO and
DOL complaints. ID at 5-7. The parties do not dispute her exhaustion findings
on review. Nonetheless, we review these matters to clarify the scope of the issues
on remand.
The appellant exhausted his March 26, 2021 HRO email and
subsequent disclosures, and an October 25, 2021 meeting with his
supervisors.
¶11We agree that the appellant raised with OSC his March 26, 2021 HRO email
and, more generally, his disclosures during the resulting agency investigation.
The appellant provided a copy of his OSC complaint with his initial appeal. IAF,
Tab 1 at 16-50. His complaint references his HRO email and the investigation
into that email. Id. at 34. He further alleged to OSC that his first-level
supervisor later retaliated against him for the embarrassment caused by his initial
email and information discovered during the resulting investigation. Id. at 37.
¶12Although not identified by the administrative judge, we observe that the
appellant also alleged retaliation for an October 25, 2021 incident in his OSC
complaint. Specifically, he alleged that his first-level supervisor retaliated
against him for information that came to light during the October 25, 2021
3 Below, the appellant also submitted an October 26, 2022 notice of proposed removal
that postdates his September 8, 2022 closure letter from OSC by more than a month.
IAF, Tab 1 at 6-12, 51-52. We clarify that, because this action postdates OSC’s closure
letter and was not raised to OSC, the Board does not have jurisdiction over it in this
IRA appeal. See Chambers, 2022 MSPB 8, ¶ 10. However, the appellant filed a
separate chapter 75 appeal challenging his removal and raising a claim that it was taken
in reprisal for the instant appeal and underlying OSC complaint. Jones v. Department
of the Navy, MSPB Docket No. DC-0752 -23-0252-I-1, Initial Appeal File (0252 IAF) ,
Tab 1 at 3, 5, Tab 15 at 6-7, Tab 20 at 4, 8-9. On January 19, 2024, the administrative
judge assigned to the matter dismissed the appeal as moot. 0252 IAF, Tab 40, Initial
Decision at 16.5
meeting between the appellant and his first- and second-level supervisors. Id.
at 40-42. Therefore, we find that he raised this October 25, 2021 incident with
OSC.
Although the appellant exhausted other claims with OSC, he did not
allege whistleblower reprisal.
¶13To the extent that the administrative judge found that the appellant
exhausted his EEO, DOL, and congressional complaints, we disagree. In his OSC
complaint, he alleged that he reported to a U.S. Representative, DOL, and the
agency’s EEO office the same concerns that he reported to HRO. Id. at 32; ID
at 6-7. Although not identified by the administrative judge, the appellant also
made a disclosure to OSC of what he believed were the agency’s November 2021
violations of FMLA as it concerned his leave usage. IAF, Tab 1 at 16-25, 44-47.
In addition, although not mentioned by the administrative judge, we observe that
the appellant alleged that his fourth-level supervisor “endangered [the
appellant’s] life by refusing to adequately address an infectious disease outbreak”
in September 2021. Id. at 47.
¶14Nonetheless, we lack jurisdiction over these matters in this IRA appeal.
The Board’s jurisdiction to review IRA complaints based on personnel actions
over which it otherwise does not have appellate jurisdiction, as here, is limited to
adjudicating allegations of reprisal for certain protected disclosures and activities.
See 5 U.S.C. §§ 1221(a), 2302(b)(8), (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), (b)(9)(D);
Marren v. Department of Justice , 51 M.S.P.R. 632, 638-39 (1991), aff’d per
curiam, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on other grounds by
Robinson v. U.S. Postal Service , 63 M.S.P.R. 307 (1994). The record contains no
evidence that the appellant alleged reprisal for his EEO, DOL, or congressional
complaints to OSC, or his disclosures to OSC that the agency violated the FMLA
or endangered his life. IAF, Tab 1 at 16-52. Nor has he claimed reprisal in
connection with these matters either below or on review. IAF, Tab 1 at 3, Tab 4;6
PFR File, Tabs 1, 4. Therefore, they do not fall within the scope of the Board’s
IRA jurisdiction, and we do not consider them further.
The appellant has made a nonfrivolous allegation that he made a protected
disclosure.
¶15We turn next to whether the appellant nonfrivolously alleged that his email
to HRO and meeting with his supervisors were protected disclosures under
5 U.S.C. § 2302(b)(8), or protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D). See McCray, 2023 MSPB 10, ¶ 11. 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); see 5 C.F.R. § 1201.4(s) (defining a
nonfrivolous allegation as an assertion that, if proven, could establish the matter
at issue).
¶16As to the March 26, 2021 HRO email, the administrative judge found that
the appellant failed to nonfrivolously allege that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i) because he did not allege that the email sought
to remedy whistleblower reprisal. ID at 6. We agree that the record was lacking.
¶17Only appeals, complaints, and grievances seeking to remedy whistleblower
reprisal are covered under section 2302(b)(9)(A)(i). Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶ 15. Filing a complaint in which an appellant did
not seek to remedy whistleblower reprisal is outside the scope of section 2302(b)
(9)(A)(i), even if the complaint disclosed wrongdoing under section 2302(b)(8).
Id., ¶¶ 15-16. There is no copy of the March 26, 2021 email in the record. The
only descriptions of what it stated are in the appellant’s OSC complaint and
OSC’s letter closing its investigation. IAF, Tab 1 at 35, 51 n.1. The appellant
described the investigation into his email as uncovering that his supervisor’s
stated reason for completing the appellant’s training “was an embarrassing lie.”
Id. at 35. OSC’s letter describes the appellant’s email as alleging that his
“first-line supervisor falsified information related to a new training requirement,7
wrongful[ly] deni[ed] [the appellant’s] selection as a Purebred Agent, and
[engaged in] unlawful conduct related to [his] use of a charging station for [his]
vehicle.” Id. at 51 n.1. Neither below nor on review does the appellant claim that
his email to HRO sought to remedy reprisal for whistleblowing.
¶18Nonetheless, we find that the appellant’s allegations on review are
sufficient to conclude that he made disclosures protected under 5 U.S.C.
§ 2302(b)(8) to the investigator assigned to his HRO email. For the first time on
review, the appellant provides a copy of an April 6, 2021 email he sent to the
investigator. PFR File, Tab 1 at 8; IAF, Tab 1 at 34. This document provides
new information regarding the appellant’s alleged disclosures that the
administrative judge did not have available below. Under 5 C.F.R. § 1201.115,
the Board generally will not consider evidence or argument submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
However, we have considered the appellant’s new evidence to the extent it
impacts the Board’s jurisdiction, which is always before the Board and may be
raised by the parties or sua sponte by the Board at any time. Ney v. Department
of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
¶19A protected disclosure is one which the employee reasonably believes
evidences 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. 5 U.S.C. § 2302(b)(8); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 14. The proper test for determining whether an
employee had a reasonable belief that his disclosure was protected is whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the disclosure
evidenced one of the circumstances described in section 2302(b)(8). Cooper,
2023 MSPB 24, ¶ 14. 8
¶20In the April 6, 2021 email he provides on review, the appellant claimed that
his first-line supervisor committed a “privacy and security” violation when he
“access[ed]” the appellant’s Total Workforce Management Services (TWMS)4
account under the appellant’s identity and falsely indicated that the appellant had
“complete[d] training.”5 PFR File, Tab 1 at 6, 8. According to the appellant, the
system showed that he completed the “Operational Security for Control Systems”
training three times but that he “did not access or complete this training at all.”
Id. at 8. He alleged to the investigator that he discovered his first-level
supervisor’s actions the week of March 15, 2021, and, when the appellant
confronted his first-level supervisor the following week, his supervisor confirmed
that he had completed the training because of an approaching deadline. Id.
¶21An employee need not identify “a statutory or regulatory provision by title
or number to receive protection under the whistleblower protection laws, when
the employee’s statements and the circumstances surrounding the making of those
statements clearly implicate an identifiable law, rule, or regulation.” Langer v.
Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001). Although the
4 The agency’s “Total Workforce Management Services (TWMS) provides employees
access to trainings” and to view personnel information.
https://www.secnav.navy.mil/rda/workforce/pages/nadp/employees/twms.aspx (last
visited July 29, 2024). We take official notice of this information, which is not in the
record, because it is publicly available. See 5 C.F.R. § 1201.64 (providing that the
Board may take official notice of matters of common knowledge or that can be
verified).
5 The appellant also indicated on review that the training at issue “plays . . . a vital role
in [the agency’s] ability to support the war fighter effectively and efficiently.” PFR
File, Tab 1 at 6. Because we find, as discussed below, that the appellant nonfrivolously
alleged that he reasonably believed his TWMS disclosure evidenced a violation of law,
we need not decide here whether he also nonfrivolously alleged that his disclosure
evidenced a substantial and specific danger to public health or safety. We also need not
make findings here as to whether the appellant nonfrivolously alleged that he made
additional protected statements in his April 6, 2021 email. He may pursue any such
claims on remand. See Skarada, 2022 MSPB 17, ¶ 13 (holding that the Board has
jurisdiction when the appellant exhausts his administrative remedies before OSC and
makes a nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one alleged protected disclosure).9
appellant did not identify the Privacy Act by name, the Privacy Act generally
prohibits the disclosure to others of private information retrieved by an
individual’s name or other “identifying particular.” 5 U.S.C. § 552a(a)(1),
(4)-(5), (b). We find that the appellant has made nonfrivolous allegations that he
reasonably believed that the agency maintained his records in the TWMS by his
name or some other personal identifier and that his supervisor’s unauthorized
access of his TWMS information violated the Privacy Act. See Herman v.
Department of Justice , 115 M.S.P.R. 386, ¶ 10 (2011) (determining that the
appellant, who was not a lawyer, nonfrivolously alleged that he made a protected
disclosure of a violation of the Privacy Act); see also Hupka v. Department of
Defense, 74 M.S.P.R. 406, 410-11 (1997) (finding that the appellant’s disclosures
regarding alleged Privacy Act violations were protected). Therefore, we find that
the Board has jurisdiction over the appellant’s communications to the investigator
looking into his email to HRO.
¶22The appellant also claimed that his first-level supervisor retaliated against
him for embarrassment he suffered at a meeting on October 25, 2021. IAF, Tab 1
at 40, 42, 51. However, the appellant did not claim that he made protected
disclosures to the second-level supervisor at the meeting or that he otherwise
engaged in protected activity within the scope of the Board’s IRA jurisdiction.
Instead, the appellant asserted that his first-level supervisor claimed the
second-level supervisor made “an unauthorized decision concerning [the
appellant’s] work schedule” but, during the meeting between the three of them,
the second-level supervisor proved that the statement the first-level supervisor
made was not true. Id. at 42. Thus, interpreting the appellant’s allegations in the
light most favorable to the appellant, it was his second-level supervisor who made
the alleged disclosure.
¶23An appellant may establish IRA jurisdiction on the basis that he is closely
associated with someone who made a disclosure protected under 5 U.S.C.
§ 2302(b)(8). Mercer v. Department of Health and Human Services , 82 M.S.P.R.10
211, ¶ 9 (1999), aff’d, 4 F. App’x 888 (Fed. Cir. 2001); Burrowes v. Department
of the Interior, 54 M.S.P.R. 547, 550-51 (1992). The non-disclosing employee is
protected in such instances because a failure to protect an employee from
retaliation based on his relationship with another employee who has engaged in
whistleblowing would discourage other employees from making protected
disclosures. See Duda v. Department of Veterans Affairs , 51 M.S.P.R. 444,
446-47 (1991). The appellant does not claim that he was a friend or relative of
his second-level supervisor such that he would be discouraged from making
protected disclosures based on his first-level supervisor’s discomfort with his
second-level supervisor’s statements. See id. at 447 (analogizing to retaliation for
Title VII activities engaged in by a friend or relative). Even if the appellant made
such an allegation, however, we would still find that he did not meet the
nonfrivolous allegation threshold because he does not indicate what the parties at
the October 25, 2021 meeting discussed regarding his schedule or how any prior
information he received was false. See Gabel v. Department of Veterans Affairs ,
2023 MSPB 4, ¶ 6 (explaining that disclosures must be specific and detailed, not
vague allegations of wrongdoing).
The appellant nonfrivolously alleged that the agency took at least one personnel
action against him.
¶24Because the administrative judge disposed of the appellant’s claims on other
grounds, she did not make any findings as to the alleged personnel actions. ID
at 5-7. Therefore, we do so here. We find that the appellant exhausted with OSC
his claims that, in reprisal for his disclosures during the investigation into his
HRO email, his fourth-level supervisor prevented his collateral-duty assignment
to Purebred Agent in April 2021, his second-level supervisor threatened to place
him in an absent without leave (AWOL) status the same month, and his first-level
supervisor did not allow him to record a meeting on May 4, 2021. IAF, Tab 1
at 36, 38-39, 43, 51.11
¶25The appellant also claimed below that his first-level supervisor threatened
him with removal on October 26, 2021. Id. at 3, 40-42. The appellant also raised
this claim to OSC. Id. at 40-42. However, he alleged to OSC only that this
threatened removal was in reprisal for the October 25, 2021 meeting, over which
we have found the Board lacks jurisdiction. Id. The appellant has not provided
evidence or alleged that he also claimed to OSC that his threatened removal was
in reprisal for his disclosures made in connection with his HRO email. Id.
at 40-42. Therefore, he did not exhaust this claim and the Board lacks
jurisdiction over the alleged October 26, 2021 threatened removal.
Threatened AWOL in April 2021
¶26The appellant alleged to OSC that his fourth-level supervisor attempted to
force him to return to work in April 2021, before the end of his 14-day quarantine
period due to an exposure to COVID-19. Id. at 38. According to the appellant,
after he declined to return early, his second-level supervisor left him a voicemail
threatening to mark the appellant as AWOL if he did not comply. Id. Within
minutes, his second-level supervisor called him back and retracted his order that
the appellant report to duty. Id.
¶27An appellant may secure corrective action in an IRA appeal based on an
agency’s threat to take a personnel action. 5 U.S.C. §§ 1221(e)(1), 2302(b)(8),
(b)(9); Rebstock Consolidation v. Department of Homeland Security ,
122 M.S.P.R. 661, ¶¶ 9-10 (2015). Placing an employee in AWOL status is a
decision concerning pay or benefits and is therefore a personnel action under
5 U.S.C. § 2302(a)(2)(A)(ix). Lawley v. Department of the Treasury , 84 M.S.P.R.
253, ¶ 14 (1999), review dismissed , 230 F.3d 1381 (Fed. Cir. 2000) (Table).
Accordingly, we find that the appellant has nonfrivolously alleged that he was
subjected to a personnel action when he was threatened with being deemed
AWOL.12
Denial of appointment as Purebred Agent and meeting in April and
May 2021
¶28The appellant alleged that the agency subjected him to a personnel action
when it prevented his collateral-duty assignment to a Purebred Agent in
April 2021. IAF, Tab 1 at 39. According to the appellant, a Purebred Agent is
“certified and designated to install the security software and certificates on
[employees’] federally issued iPhones.” Id. He indicated that he was told that
Purebred Agent was a “non -paid, lateral duty” that required a security clearance,
which he did not otherwise need for his position as an Air Conditioning
Equipment Mechanic. Id. The appellant asserted that his first- and second-level
supervisors nominated him to become a Purebred Agent, but his fourth-level
supervisor obstructed his nomination by refusing to request the required security
clearance needed for him to become a Purebred Agent.6 Id.
¶29The appellant also claimed that, upon returning to work after completing his
quarantine period, his first-line supervisor requested a meeting with him and his
union steward on May 4, 2021. Id. at 36. According to the appellant, when he
arrived at the meeting his first-line supervisor refused to allow the appellant to
record the meeting. Id. To the extent the appellant is arguing that his first-line
supervisor’s refusal to allow him to record a disciplinary meeting was a personnel
action, we disagree.
¶30Section 2302(a)(2)(A) defines a “personnel action” as any one of
11 enumerated actions and “any other significant change in duties,
responsibilities, or working conditions[.]” Neither of the above incidents fall
under an enumerated personnel action. However, we will consider both incidents
below when determining whether multiple actions collectively constituted a
significant change in duties, responsibilities, or working conditions. See Skarada,
2022 MSPB 17, ¶¶ 16, 18, 29.
6 The appellant indicated that, as a result of the HRO investigation, his fourth-level
supervisor was instructed to request the security clearance. IAF, Tab 1 at 39.13
Hostile Work Environment
¶31The appellant also alleged that he was subjected to a hostile work
environment due to harassment by his supervisors. IAF, Tab 1 at 34-35.
Allegations of a hostile work environment may establish a personnel action in an
IRA appeal only if they meet the statutory criteria under 5 U.S.C. § 2302(a)(2)
(A), i.e., constitute a significant change in duties, responsibilities, or working
conditions. See Skarada, 2022 MSPB 17, ¶ 16. In determining whether an
appellant has suffered a “significant change” in his duties, responsibilities, or
working conditions, the Board must consider the alleged agency actions both
collectively and individually. Id., ¶ 16 (citing Holderfield v. Merit Systems
Protection Board , 326 F.3d 1207, 1209 (Fed. Cir. 2003)); see Sistek v.
Department of Veterans Affairs , 955 F.3d 948, 955-56 (Fed. Cir. 2020) (holding
that an investigation may qualify as a personnel action under 5 U.S.C. § 2302(a)
(2)(A)(xii) if, either alone or combination with other agency actions, the
investigation changed the subject employee’s working conditions). Only agency
actions that, individually or collectively, have practical and significant effects on
the overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Skarada, 2022 MSPB 17, ¶ 16. Thus, actions that
alone are not personnel actions may cumulatively be sufficiently severe or
pervasive to qualify as a hostile work environment actionable in an IRA appeal.
Id., ¶¶ 16, 18, 29.
¶32Here, we limit our discussion to the incidents that we find, above, are not
personnel actions on their own. These incidents include the appellant’s
fourth-level supervisor’s alleged obstruction of the security clearance needed to
proceed with the appellant’s nomination to Purebred Agent in April 2021, and his
first-level supervisor’s refusal to allow the appellant to record a meeting on
May 4, 2021. IAF, Tab 1 at 36, 39. In a comparable case, the Board found that
an appellant failed to nonfrivolously allege that he was subjected to a hostile14
work environment based on a number of actions by his supervisors, such as
telling the appellant not to attend meetings or perform “extra duties” and
declining to support the potential upgrade of his position, even when combined
with three incidents of supervisors yelling at the appellant over the course of a
year. Skarada, 2022 MSPB 17, ¶¶ 26-29. The fact that the appellant’s
assignment to collateral duties was delayed and that he was not allowed to record
a meeting similarly fall short of the type of actions that have practical and
significant effects on the type of work he performed or his day-to-day work
environment. Therefore, we decline to consider these matters further.
The appellant made a nonfrivolous allegation that his disclosure of a Privacy Act
violation contributed to the threat to designate him as AWOL.
¶33To 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; see 5 U.S.C. § 1221(e)(1). Due to our findings above,
we are only considering here whether the appellant’s Privacy Act violation
disclosure was a contributing factor in the April 2021 threatened personnel action.
We find that the appellant has met his jurisdictional burden.
¶34The Board has held that personnel actions taken within 1 to 2 years of the
protected activity satisfy the timing prong of the knowledge/timing test, but those
that take place more than 2 years after the activity are too remote to satisfy the
test. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 63;15
Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 21 (2013). Here, the
appellant nonfrivolously alleged that, no later than April 6, 2021, he made a
protected disclosure of a Privacy Act violation. IAF, Tab 1 at 34-35; PFR File,
Tab 1 at 8. He also has nonfrivolously alleged that, on April 25, 2021, less than a
month after he made his disclosure, his second-level supervisor threatened to
designate the appellant as AWOL when he quarantined per agency policy due to a
COVID-19 exposure. IAF, Tab 1 at 38. Therefore, the appellant has
nonfrivolously alleged that he meets the timing prong of the knowledge/timing
test as to this personnel action.
¶35We also determine that the record contains sufficient allegations to satisfy
the knowledge prong of the knowledge/timing test at the jurisdictional stage. The
knowledge prong can be established with allegations of either actual or
constructive knowledge. Abernathy v. Department of the Army , 2022 MSPB 37,
¶ 15. An appellant may establish an official ’s constructive knowledge of a
protected disclosure by demonstrating that an individual with actual knowledge of
the disclosure influenced the official accused of taking the retaliatory action. Id.
¶36According to the appellant, his fourth-level supervisor was initially tasked
with assigning an investigator into the appellant’s HRO email. IAF, Tab 1 at 38.
He also alleges that his second-level supervisor threatened him with AWOL status
on April 25, 2021, after his fourth-level supervisor demanded that the appellant
return to work before his quarantine period had ended. Id. We recognize that
there are questions regarding the information the appellant’s fourth-level
supervisor had, if any, by April 25, 2021, regarding the appellant’s Privacy Act
disclosure, and that supervisor’s involvement in the threat to mark the appellant
as AWOL. However, as noted above, we resolve any doubt or ambiguity as to
whether the appellant made a nonfrivolous allegation in favor of finding
jurisdiction. See Skarada, 2022 MSPB 17, ¶ 6. We conclude that his allegations
are sufficient to establish contributing factor at the jurisdictional stage. Thus, we
find that the appellant has raised a nonfrivolous allegation his protected16
disclosure to the investigator into his HRO complaint contributed to the
threatened AWOL status on April 25, 2021. Therefore, we remand this appeal for
a decision on the merits.
ORDER
¶37For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Jones_Derrick_J_DC-1221-23-0074-W-1_Remand_Order.pdf | 2024-07-29 | DERRICK JONES v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-23-0074-W-1, July 29, 2024 | DC-1221-23-0074-W-1 | NP |
834 | https://www.mspb.gov/decisions/nonprecedential/Brown_Herbert_J_AT-0714-20-0391-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HERBERT J. BROWN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0391-I-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raymond Mitchell , Columbia, South Carolina, for the appellant.
Mary Bea Sellers , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal pursuant to 38 U.S.C. § 714. For the reasons set
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant filed an appeal of his removal, and the administrative judge
held a hearing. Initial Appeal File (IAF), Tabs 1, 16. The administrative judge
issued a July 21, 2020 initial decision affirming the agency’s action. IAF,
Tab 20, Initial Decision (ID). The initial decision specifically stated that the
deadline to file a petition for review was August 25, 2020, and provided
information on how to file a petition for review. ID at 12-13. The appellant filed
a petition for review, which the Board received on December 18, 2020. Petition
for Review (PFR) File, Tab 1 at 1. The petition for review is dated December 9,
2020, and the envelope in which it was mailed bears a December 11, 2020
postmark. Id. at 1, 4.
¶3The Acting Clerk of the Board notified the appellant that, because he filed
his petition after August 25, 2020, i.e., over 35 days following the issuance of the
July 21, 2020 initial decision, it was untimely filed. PFR File, Tab 2 at 1. The
letter explained to the appellant that the Board’s regulations require a petition for
review that appears untimely be accompanied by a motion to accept the filing as
timely and/or to waive the time limit for good cause. Id. at 2. The letter set a
deadline of January 2, 2021 for the appellant to submit the motion. Id. The
appellant did not file the required motion concerning the timeliness of his petition
for review. The agency has filed a response to the appellant’s petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the 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 he exercised due2
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 her inability to timely file his petition.
Id. (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)).
¶5Here, as noted above, the deadline for filing a petition for review was
August 25, 2020, and the envelope containing the petition for review bears a
December 11, 2020 postmark, making it 108 days late. ID at 12; PFR File, Tab 1
at 4. Although the Clerk afforded the appellant the opportunity to prove that his
petition for review was timely filed or show good cause for the untimely filing,
the appellant has not responded. PFR File, Tab 2 at 2.
¶6The appellant’s representative wrote in the unsworn petition for review that
the appellant did not receive the July 21, 2020 initial decision until November
2020, after he requested a copy of the decision from the Board. PFR File, Tab 1
at 1. The certificate of service for the initial decision indicates that on July 21,
2020, the regional office served the initial decision on the appellant at his address
of record by the U.S. Mail. IAF, Tab 21; IAF, Tab 1 at 5. Although the
appellant’s representative claims that the appellant did not receive the mailed
copy of the initial decision served on him, PFR File, Tab 1 at 1, there is nothing
in the record from the appellant himself regarding when he received the initial
decision, and his representative lacks first-hand knowledge of when the appellant
received the initial decision. Moreover, the statement of the appellant’s
representative, as noted above, is not sworn, and therefore does not constitute3
evidence of when the appellant received the initial decision. PFR File, Tab 1
at 1; Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995)
(observing that the statements of a party’s representative in a pleading do not
constitute evidence) . Additionally, there is nothing in the record to indicate that
the copy of the initial decision served on the appellant was returned to the Board
as undelivered.
¶7Furthermore, the certificate of service for the initial decision indicates that
the regional office served the initial decision on the appellant’s representative by
electronic mail, IAF, Tab 21, and the representative does not assert that he failed
to receive that copy of the initial decision. S ervice on a party’s designated
representative under these circumstances will be imputed to the party. See, e.g.,
Laboy v. U.S. Postal Service , 103 M.S.P.R. 570, ¶ 6 (2006) (observing that
electronic service on an appellant’s representative will be imputed to the party);
Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 5 (2006) (“[s]ervice on
a party’s designated representative will be imputed to the party”). Therefore, the
appellant is imputed to have received the decision through his representative.
¶8An appellant whose petition for review is filed late, but does not file the
required motion concerning the timeliness of his petition for review has failed to
show the due diligence and ordinary prudence necessary for the Board to find
good cause for his delay in filing. Galleno v. Office of Personnel Management ,
63 M.S.P.R. 440, 442 (1994) (finding that an appellant who filed her petition for
review 4 months late, and failed to file the required motion on timeliness, failed
to show good cause for waiver of the filing deadline), aff’d, 48 F.3d 1236 (Fed.
Cir. 1995) (Table); see Goldberg v. Department of Defense , 39 M.S.P.R. 515, 518
(1989) (stating that in the absence of good cause shown, the Board will not waive
its timeliness requirements even if the delay is minimal); Mejia v. Office of
Personnel Management , 38 M.S.P.R. 472, 473 (1988) (finding that, where the
appellant failed to respond to the Clerk’s notice concerning the timeliness of his
petition for review and his untimely filing did not include a motion for waiver of4
the time limit or an affidavit or statement to establish good cause, the appellant
has not demonstrated good cause for the untimely filing). As explained above,
the appellant filed his petition for review 108 days late. ID at 12; PFR File,
Tab 1 at 1, 4; 5 C.F.R. § 1201.114(e). Because the appellant failed to file the
required motion, as was explained in the Acting Clerk’s December 18, 2020 letter
acknowledging his petition for review, we find that he has failed to establish good
cause for the waiver of the time limit. PFR File, Tab 2 at 1-2; Galleno,
63 M.S.P.R. at 442; Goldberg, 39 M.S.P.R. at 518; Mejia, 38 M.S.P.R. at 473.
¶9Accordingly, 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 | Brown_Herbert_J_AT-0714-20-0391-I-1_Final_Order.pdf | 2024-07-29 | HERBERT J. BROWN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0391-I-1, July 29, 2024 | AT-0714-20-0391-I-1 | NP |
835 | https://www.mspb.gov/decisions/nonprecedential/Ibuzo_EdithPH-3443-23-0158-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDITH IBUZO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-3443-23-0158-I-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edith Ibuzo , Abingdon, Maryland, pro se.
Brandon Cubas , Esquire, Baltimore, Maryland, for the agency.
Timothy O'Boyle , Esquire, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner 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 alleging discriminatory harassment for lack of jurisdiction.2
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 issued by the administrative judge,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
2 In light of our finding that the Board lacks jurisdiction over the appeal, we need not
reach the issue of whether the petition for review is timely filed. See Dean v. U.S.
Postal Service, 115 M.S.P.R. 56, ¶ 13 n. 5 (2010).
3 The appellant filed this appeal in which she alleged that her supervisor “continue[d] to
discriminate, harass and retaliate against [her] for filing a [equal employment
opportunity] claim.” Initial Appeal File (IAF), Tab 1. Because it appeared that the
Board may not have jurisdiction over the matter appealed, the administrative judge
issued an acknowledgement order advising the parties of the jurisdictional issue, the
burden of proof relative to that issue, and an opportunity to submit evidence and
argument on the jurisdictional issue. IAF, Tab 2. The appellant did not respond to that
order. Thereafter, the agency filed a motion to dismiss the appellant’s appeal for lack
of jurisdiction arguing that the appellant had not established Board jurisdiction over the
appeal. IAF, Tab 6. The appellant did not respond to the agency’s motion to dismiss.
For the first time on review, the appellant alleges that she was terminated, without
providing any supporting evidence. Petition for Review File, Tab 2. Generally, 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). Here, the appellant’s new argument does not provide a basis for
further review under the circumstances.2
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Ibuzo_EdithPH-3443-23-0158-I-1_Final_Order.pdf | 2024-07-29 | EDITH IBUZO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-3443-23-0158-I-1, July 29, 2024 | PH-3443-23-0158-I-1 | NP |
836 | https://www.mspb.gov/decisions/nonprecedential/Germain_JeanNY-0752-21-0042-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEAN R. GERMAIN,
Appellant,
v.
FEDERAL RESERVE SYSTEM,
Agency.DOCKET NUMBER
NY-0752-21-0042-I-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jean R. Germain , Princeton, New Jersey, pro se.
Sarah Preis , Esquire, and Kelsie Williams , 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 his removal. On petition for review, the appellant challenges the
administrative judge’s handling of his equal employment opportunity (EEO)
reprisal claim, and he argues that the administrative judge improperly denied 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).
an opportunity to present evidence and call witnesses and was biased against him.
Petition for Review (PFR) File, Tab 1 at 6. He also submits several documents
with his petition for review. Id. at 10-33. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The administrative judge correctly found that the agency proved the charges
of disrespectful conduct and making an inflammatory statement by preponderant
evidence, that a nexus exists between the misconduct and the efficiency of the
service, and that the penalty of removal was reasonable. Initial Appeal File
(IAF), Tab 109, Initial Decision (ID) at 4-13, 16-17. She also correctly found
that the appellant failed to establish any of his affirmative defenses, which
include a claim of a due process violation, discrimination based on his military2
status,2 and reprisal for engaging in EEO activity and filing an Office of Workers’
Compensation Programs (OWCP) claim.3 ID at 13-16.
We discern no basis to disturb the administrative judge’s finding that the
appellant failed to establish his EEO reprisal claim.
¶3In the initial decision, the administrative judge concluded that the record
did not support a finding that the removal action was “taken because of” the
appellant’s EEO activity. ID at 16. The appellant argues on review that the
administrative judge should have consolidated his Board appeal with his Equal
Employment Opportunity Commission (EEOC) appeal because the two appeals
are “connected” and should have been consolidated for evidentiary purposes.
PFR File, Tab 1 at 6. This argument is without merit, as the Board and the EEOC
are separate tribunals with separate processes and do not consolidate cases.
¶4Additionally, the appellant argues that the administrative judge failed to
consider the cat’s paw theory or whether the evidence demonstrated a convincing
mosaic of retaliation. Id. Neither argument provides a basis to disturb the initial
decision. Under the cat’s paw theory, an appellant can show retaliation by
showing that a particular management official, acting because of an improper
2 The appellant has also filed a Uniformed Services Employment and Reemployment
Rights Act (USERRA) appeal, which is pending before the Board on petition for review
following remand, and will be addressed in a separately issued decision. Germain v.
Federal Reserve System , MSPB Docket No. NY-4324-21-0117-B-1, Petition for Review
File, Tab 1.
3 In the appellant’s arguments below regarding reprisal, he references an Office of the
Inspector General complaint as well as disclosures regarding harassment. IAF, Tab 21
at 5, 11-12. Although the administrative judge provided the appellant notice of how to
prove a whistleblower reprisal claim, she did not address any such claim in the initial
decision. The appellant has not raised this as an issue on review. PFR File, Tab 1.
Given that the focus of the appellant’s reprisal claims is largely concentrated around his
EEO activity, the fact he did not further elaborate on his already vague and
underdeveloped whistleblower reprisal allegations following the administrative judge’s
notice, and the fact that he did not challenge the administrative judge’s decision to omit
a discussion of whistleblower reprisal from the initial decision, we conclude that a
remand is not necessary on this issue. See Thurman v. U.S. Postal Service , 2022 MSPB
21, ¶ 18 (setting forth a nonexhaustive list of factors to consider in determining whether
an appellant waived an affirmative defense or whether an administrative judge’s
handling of an affirmative defense warrants remand). 3
animus, influences an agency official who is unaware of the improper animus
when implementing a personnel action. See Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 19 (2014). Here, according to the appellant, the
management official with the alleged improper animus was his supervisor, who is
also the official who proposed his removal. Thus, the supervisor was directly
involved in implementing the personnel action and the administrative judge
considered whether that official had improper motives. Accordingly, the cat’s
paw theory does not apply. Additionally, although the appellant is correct that
the administrative judge did not discuss whether the evidence demonstrated a
“convincing mosaic” of retaliation, the Board has explained that not all types of
evidence or ways of viewing the evidence will be applicable in every case. See
Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 12; Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶ 24. To the extent the appellant is
arguing that the administrative judge did not adequately address all the evidence
of record, the Board has explained that an administrative judge’s failure to
mention all the evidence of record does not mean that she did not consider it in
reaching her conclusion.4 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). Based on our review of the record, we discern no basis to disturb the
administrative judge’s finding that the appellant failed to establish this
affirmative defense.5
4 In any event, the Board has explained that a “convincing mosaic” of evidence includes
evidence of suspicious timing, ambiguous statements oral or written, behavior toward or
comments directed at other employees in the protected group, and other bits and pieces
from which an inference of discriminatory intent might be drawn. Pridgen, 2022 MSPB
31, ¶ 24. Apart from a somewhat “suspicious timing,” the appellant has not put forth
any other evidence that, cumulatively, could constitute a convincing mosaic of
circumstantial evidence that his EEO activity was a motivating factor in his removal.
5 In Pridgen v. Office of Management and Budget , the Board explained that an appellant
may prove an EEO reprisal claim if he shows that his EEO activity played “any part” or
was a motivating factor in the decision to remove him. Pridgen, 2022 MSPB 31,
¶¶ 20-22, 30; see Wilson, 2024 MSPB 3, ¶ 11. Based upon our review of the record
evidence, we find that the appellant did not show that his EEO activity was at least a4
The appellant’s remaining arguments on review do not provide a basis to disturb
the initial decision.
¶5As noted above, the appellant also argues on review that the administrative
judge denied his request to submit evidence and call witnesses, and was biased
against him. Regarding the appellant’s claim that he was denied an opportunity to
submit evidence, he has not pointed to any specific evidence that he wished to
submit that the administrative judge refused to admit.6 PFR File, Tab 1 at 6.
Regarding his argument concerning witnesses, the record shows that the appellant
requested 43 witnesses and asserted that each witness “would help corroborate
[his] complaints of harassment, retaliation, and protected activities.” IAF,
Tabs 50, 73, 76. Although the administrative judge approved the proposing and
deciding officials and the appellant as the only witnesses, she explained that she
could convene an additional hearing session following the scheduled hearing if
she determined that there was a need for additional witnesses to testify. IAF,
Tab 94. The appellant broadly argues that this handling was improper. PFR File,
Tab 1 at 6. However, it is well settled that an administrative judge has wide
discretion to exclude witnesses when it has not been shown that their testimony
motivating factor in the agency’s decision.
6 With his petition for review, the appellant submits several documents, including his
response to the notice of proposed removal, a March 23, 2021 letter from the
Department of Labor (DOL) regarding referral of what appears to be a USERRA matter
to OSC, December 31, 2022 and January 2, 2023 statements from the appellant
regarding his claim of “bias and prejudice,” a July 26, 2022 appeal request form for
OWCP, and a January 27, 2023 written request to DOL asking that the appellant’s claim
be reopened. PFR File, Tab 1 at 10-33. The Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record closed before the administrative judge despite the party’s
due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980).
Here, the record closed on September 13, 2021. To the extent that some of the
documents submitted on review postdate the close of record, the appellant has not
explained how those documents are of sufficient weight to warrant an outcome different
than that of the initial decision. PFR File, Tab 1. Thus, none of the documents
submitted on review provides a basis to grant the petition for review. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally
will not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).5
would be relevant, material, and nonrepetitious. See Warren v. Department of
Defense, 87 M.S.P.R. 426, ¶ 7 (2001); see also 5 C.F.R. § 1201.41(b)(8) (setting
forth an administrative judge’s authority and discretion to rule on witnesses).
Given that the appellant’s proffer for each proposed witness generically asserted
that they would all testify regarding his claims of harassment, retaliation, and
protected activity, the appellant has not demonstrated that such witness testimony
would not be non-repetitious. Further, such a sweeping proffer regarding the
subject matter of the testimony is insufficient to meet the requirement that the
proffered testimony be relevant and material. Moreover, the appellant did not
object below to the administrative judge’s limiting of witnesses. Although it does
not appear that the administrative judge provided the appellant a specific
opportunity to make such an objection, the appellant fails on review to assert with
any specificity how the exclusion of certain witnesses prejudiced his substantive
rights. See Warren, 87 M.S.P.R. 426, ¶ 8; see also Karapinka v. Department of
Energy, 6 M.S.P.R. 124, 127 (1981). Accordingly, the appellant’s arguments in
this regard do not provide a basis to disturb the initial decision.
¶6The appellant also argues on review that the administrative judge was
biased against him. PFR File, Tab 1 at 6. 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. See Fox
v. Department of the Army , 120 M.S.P.R. 529, ¶ 46 (2014); Oliver v. Department
of Transportation , 1 M.S.P.R. 382, 386 (1980). We find nothing in the record to
support the appellant’s assertion that the administrative judge was biased in her
adjudication of this matter, and the appellant does not point to specific examples
in his petition for review. As such, the appellant has not overcome the
presumption of honesty and integrity accompanying administrative adjudicators,
and this argument, therefore, is without merit.
¶7Based on the foregoing, we affirm the initial decision.6
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Germain_JeanNY-0752-21-0042-I-1_Final_Order.pdf | 2024-07-29 | JEAN R. GERMAIN v. FEDERAL RESERVE SYSTEM, MSPB Docket No. NY-0752-21-0042-I-1, July 29, 2024 | NY-0752-21-0042-I-1 | NP |
837 | https://www.mspb.gov/decisions/nonprecedential/Sung_Mo_C_NY-0752-21-0021-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MO CHIAO SUNG,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0752-21-0021-I-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mo Chiao Sung , Mineola, New York, pro se.
Krista M. Irons , Esquire, and Roderick Eves , Esquire, St. Louis, Missouri,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based 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
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 does not challenge the administrative
judge’s jurisdictional findings or argue that he is a U.S. Postal Service employee
with Board appeal rights. Petition for Review (PFR) File, Tab 1 at 11. Rather, he
challenges the merits of his removal and submits new evidence and argument
related to an Equal Employment Opportunity complaint and Office of Worker’s
Compensation claims. Id. at 5-20. We have considered the appellant’s new
evidence and argument to the extent it concerns the issue of the Board’s
jurisdiction because jurisdiction can be raised at any time, including on review.
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). However, the appellant presents no basis for overturning
the administrative judge’s finding that he failed to raise nonfrivolous allegations
that he met the criteria of a Postal Service employee with the right to appeal an
adverse action to the Board under 39 U.S.C. § 1005(a) or 5 U.S.C § 7511(a)(1)(B)2
(ii).2 Initial Appeal File, Tab 10, Initial Decision (ID) at 3; see Hamilton v. U.S.
Postal Service, 123 M.S.P.R. 404, ¶ 17 (2016).
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
2 Because the appellant did not raise nonfrivolous allegations of jurisdiction, the
administrative judge appropriately did not reach the issue of the timeliness of the initial
appeal. ID at 4 n.5; see Beaudette v. Department of the Treasury , 100 M.S.P.R. 353,
¶ 11 (2005) (finding that claims over which the Board clearly lacks jurisdiction should
be dismissed on the basis of jurisdiction rather than timeliness).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Sung_Mo_C_NY-0752-21-0021-I-1_Final_Order.pdf | 2024-07-29 | MO CHIAO SUNG v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0752-21-0021-I-1, July 29, 2024 | NY-0752-21-0021-I-1 | NP |
838 | https://www.mspb.gov/decisions/nonprecedential/Watson_Marc_A_DC-0843-20-0477-I-1_Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARC ANTHONY WATSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0843-20-0477-I-1
DATE: July 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marc Anthony Watson , Laurel, Maryland, pro se.
Tanisha Elliott , 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 his application for a lump sum death benefit under the Federal
Employees’ Retirement System (FERS). 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).
On petition for review, the appellant repeats his request that his deceased
spouse’s passing be considered a “Death in Service” and that he “receive the
appropriate compensation.” Petition for Review (PFR) File, Tab 1 at 5. He
argues that the administrative judge failed to adequately address his claims
regarding the improper processing of his spouse’s application for disability
retirement. Id. at 4-5. The appellant also challenges the administrative judge’s
denial of his proposed witnesses during the prehearing conference. Id. at 4.2
Finally, he requests that the Board investigate and/or interview staff from OPM
and the employing agency to determine if the proper policies and procedures were
followed. Id. at 5.
The appellant’s arguments on review provide no basis for overturning the
administrative judge’s finding that he failed to meet his burden of proving by
preponderant evidence his entitlement to a basic employee death benefit because
his spouse met the definition of an annuitant and not a Federal employee at the
2 During the prehearing conference, the appellant withdrew his request for a hearing.
Initial Appeal File, Tab 10 at 2.2
time of her death. Initial Appeal File (IAF), Tab 13, Initial Decision (ID)
at 12-13; see 5 U.S.C. § 8401(2); Hall v. Office of Personnel Management ,
51 M.S.P.R. 560, 564 (1991), aff’d, 979 F.2d 216 (Fed. Cir. 1992) (Table);
5 C.F.R. §§ 843.102, 1201.56(b)(2)(ii). Under 5 U.S.C. § 8442(b) and OPM’s
implementing regulation at 5 C.F.R. § 843.309, a widower may be entitled to a
basic employee death benefit under FERS based on the service of a Federal
employee who dies while still in duty status, subject to certain requirements. The
definition of an employee “includes a person who has applied for retirement
under FERS but had not been separated from the service prior to his or her death,
even if the person’s retirement would have been retroactively effective upon
separation.” 5 C.F.R. § 843.102. Regardless of the appellant’s repeated
assertions that OPM should not have processed his spouse’s retirement
application due to her misrepresentation that she was unmarried3 and failure to
obtain his consent, the record is clear that she did not meet the definition of an
employee under 5 C.F.R. § 843.102 at the time of her death. PFR File, Tab 1
at 4-5; IAF, Tab 8 at 35, Tab 11 at 5-6. OPM approved his spouse’s application
for disability retirement on June 29, 2017, and she retired effective July 8, 2017.
IAF, Tab 8 at 106, 114. She subsequently passed away on August 4, 2017. Id.
at 83. Therefore, the appellant was not entitled to death benefits pursuant to
5 U.S.C. § 8442(b).
The administrative judge properly found that the appellant had provided no
authority to support his position that he should be entitled to the lump sum death
benefit because he would have received it if OPM had not processed his spouse’s
3 Contrary to the appellant’s arguments that his signature and consent were required in
order for his deceased spouse to submit her disability retirement application, the
relevant statute and regulations prohibit an employee from electing a self-only annuity
without spousal consent and did not prevent her from seeking retirement benefits in
general without his consent. PFR File, Tab 1 at 4-5; IAF, Tab 11 at 5-6; see 5 U.S.C.
§ 8416(a)(1); 5 C.F.R. § 842.606. The appellant has acknowledged that OPM made a
subsequent determination that he and the decedent were legally separated at the time of
her death and has paid to him survivor annuity benefits, which are not at issue in the
present appeal. IAF, Tab 8 at 63, Tab 11 at 5. 3
inaccurate retirement application prior to her death and that there is no provision
of law that permits OPM to make such payments as a matter of equity. ID at 13
(citing Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 434
(1990)); see Soroka v. Office of Personnel Management , 557 F. Appx. 983, 986
(Fed. Cir. 2014) (stating that the Board lacks “the authority to require OPM to
award lump sum death benefits in a matter contrary to the unequivocal dictates”
of the controlling statute); see also Mauldin v. U.S. Postal Service , 115 M.S.P.R.
513, ¶ 12 (2011) (stating that the Board may rely on unpublished Federal Circuit
decisions when it finds the court’s reasoning persuasive).
Regarding the appellant’s challenges to the administrative judge’s rulings
denying two of his proposed witnesses, there is no evidence in the record,
including the appellant’s close of record argument, that he objected to the
exclusion of these witnesses, and thus, he is precluded from doing so on review.
IAF, Tab 11 at 5-7; see Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581
(1988). Even if he had preserved an objection, we would not disturb the initial
decision. An administrative judge has broad discretion to control proceedings,
including excluding evidence or witnesses that are not relevant or material to the
issues of the case. Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011);
see 5 C.F.R. § 1201.41(b)(8). To obtain a reversal on an initial decision on these
grounds, the petitioning party must show on review that a relevant witness or
evidence, which could have affected the outcome, was disallowed. Thomas,
116 M.S.P.R. 453, ¶ 4. The appellant fails to establish how the testimony of
either the HR professional or an OPM employee would have affected the outcome
of his appeal, since the record evidence clearly demonstrates that he is not
entitled to death benefits under 5 U.S.C. § 8442(b). Therefore, we find that the
appellant has failed to show that the administrative judge abused her discretion.
Finally, the Board lacks jurisdiction to interview or investigate employees
of OPM or the decedent’s employing agency to determine whether they followed
the proper procedures and policies in processing the retirement application, as4
requested by the appellant on review. PFR File, Tab 1 at 5; see Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the
Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation).
Therefore, we 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 on6
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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) or7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If 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. 8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Watson_Marc_A_DC-0843-20-0477-I-1_Final Order.pdf | 2024-07-29 | MARC ANTHONY WATSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0843-20-0477-I-1, July 29, 2024 | DC-0843-20-0477-I-1 | NP |
839 | https://www.mspb.gov/decisions/nonprecedential/Borthwick_DanicaAT-844E-20-0689-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANICA BORTHWICK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-20-0689-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki L. Fuller , Esquire, Redstone Arsenal, Alabama, 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 application for disability retirement 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).
argues that the record established a deficiency in her performance and attendance,
that the medical evidence demonstrated that she would be disabled for at least 1
year from the date of her disability retirement application, and that her employing
agency failed to accommodate her medical conditions. Petition for Review (PFR)
File, Tab 1 at 4. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the appellant failed to show
by preponderant evidence that she met the criteria for disability retirement.
Initial Appeal File (IAF), Tab 18, Initial Decision (ID) at 9-13; see 5 U.S.C.
§ 8451; 5 C.F.R. § 844.103(a). Specifically, we agree with his conclusion that,
although the medical documentation and subjective evidence offered by the
appellant indicates the existence of troublesome medical conditions, “there is
insufficient evidence on which to conclude that the appellant is disabled to the
degree necessary to warrant an award of disability retirement benefits.” ID at 12.
The appellant’s petition for review does not provide a basis to disturb this
conclusion. PFR File, Tab 1. 2
In her petition for review, the appellant expressed concern that her
employing agency would eventually remove her for a medical inability to perform
the essential duties of her position. PFR File, Tab 1 at 4. Like the administrative
judge, we remind the appellant that if such an event occurs, she may, within
1 year of removal, again apply for disability retirement on that basis, and that if
OPM issues an adverse final reconsideration decision, she may again file an
appeal with the Board.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
2 If the appellant is removed for a medical inability to perform the essential duties of
her position, the Bruner presumption would apply to an application for disability
retirement. See Bruner v. Office of Personnel Management , 996 F.2d 290, 294 (Fed.
Cir. 1993) (concluding that an appellant’s removal for physical inability to perform the
essential functions of her position constitutes prima facie evidence that she is entitled to
disability retirement).
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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Borthwick_DanicaAT-844E-20-0689-I-1_Final_Order.pdf | 2024-07-26 | DANICA BORTHWICK v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0689-I-1, July 26, 2024 | AT-844E-20-0689-I-1 | NP |
840 | https://www.mspb.gov/decisions/nonprecedential/Chafin_Barbara_L_AT-844E-20-0506-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA LEE CHAFIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-20-0506-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, 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) that denied her application for disability retirement benefits under the
Federal Employees’ Retirement System (FERS). On petition for review, 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 argues that the administrative judge erred in affirming OPM’s final
decision by relying solely on the appellant’s claim concerning her inability to
commute to work and failed to assess whether her epilepsy is incompatible with
either useful and efficient service or retention in her former position. Petition for
Review (PFR) File, Tab 1 at 4. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except to SUPPLEMENT
the administrative judge’s analysis to explain the determination that the appellant
failed to show that her medical condition was incompatible with either useful and
efficient service or retention in her position, we AFFIRM the initial decision.
On review, the appellant argues, in part, that as a result of her medical
condition she could not perform the duties of her position. PFR File, Tab 1
at 7-8. The administrative judge was not persuaded, and neither are we. Initial
Decision (ID) at 3-5. We supplement the initial decision to provide additional
support for this finding.
One way that an appellant may meet the statutory requirement that she is
unable, because of disease or injury, to render useful and efficient service in her
position is by demonstrating that her medical condition is inconsistent with
working in general, in a particular line of work, or in a particular type of work2
setting. 5 U.S.C. § 8451(a)(1)(B); Christopherson v. Office of Personnel
Management, 119 M.S.P.R. 635, ¶ 6 (2013). Here, the medical evidence in the
record indicated that, after a seizure at work in February 2018, the hospital
discharged the appellant the next day in stable condition with no restrictions and
further noted that she was alert, oriented, and had good judgment.2 Initial Appeal
File (IAF), Tab 13 at 94-95. Although the appellant provided physician’s notes to
support her application for disability, the notes provided her epilepsy diagnosis,
requested the agency excuse her from work for follow-up appointments for her
seizures, and reflected that she suffered from stress related to her inability to
drive, but noted no additional restrictions. Id. at 100, 107. The appellant’s
hearing testimony provided little clarity about her medical condition’s functional
implications on her ability to do her job, and she only identified the restriction of
her inability to commute. IAF, Tab 21, Hearing Audio (testimony of the
appellant). Accordingly, after considering all evidence in the record, we discern
no basis to disturb the administrative judge’s finding that the appellant failed to
show that she suffered from a disabling medical condition that was incompatible
with either useful and efficient service or retention in her position. See
Christopherson, 119 M.S.P.R. 635, ¶ 6; 5 C.F.R. § 844.103(a)(2). To the extent
the appellant raises arguments regarding the remaining criteria for entitlement to
disability retirement, such as whether accommodation of her medical condition in
2 On review, the appellant argues that OPM’s contention that her seizure activity has
remained stable is incorrect and she has continued to suffer from seizures since her
removal. PFR File, Tab 1 at 6-7; IAF, Tab 13 at 9, Tab 16 at 6. However, any
worsening of her condition after her separation is not relevant to our determination.
Rather, we must restrict our inquiry to whether she became disabled while employed.
5 C.F.R. § 844.103(a)(2); see Wall v. Office of Personnel Management , 116 M.S.P.R.
188, ¶¶ 5, 18 (2010) (finding in a Civil Service Retirement System disability retirement
appeal that post-termination medical evidence that did not link the worsening of an
appellant’s medical condition to the period prior to his termination did not substantiate
the existence of a pre-termination disability), aff’d per curiam, 417 F. App’x 952 (Fed.
Cir. 2011). Thus, although we have considered this evidence, we do not find that it
changes the outcome in this appeal. IAF, Tab 16 at 10-11.3
the position held was unreasonable, PFR File, Tab 1 at 7-8; Christopherson,
119 M.S.P.R. 635, ¶ 6, we find it unnecessary to address those arguments.
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.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.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. 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 | Chafin_Barbara_L_AT-844E-20-0506-I-1_Final_Order.pdf | 2024-07-26 | BARBARA LEE CHAFIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0506-I-1, July 26, 2024 | AT-844E-20-0506-I-1 | NP |
841 | https://www.mspb.gov/decisions/nonprecedential/Eaddy_Patricia_A_DC-0831-20-0558-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA A. EADDY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-20-0558-I-1
DATE: July 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
Patricia A. Eaddy , Temple Hills, Maryland, pro se.
Karla W. Yeakle and Maureen Ann Kersey , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of Board jurisdiction her appeal of the initial decision of the
Office of Personnel Management (OPM) denying her challenge to her Civil
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).
Service Retirement System (CSRS) disability annuity computation. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant filed an appeal challenging what she described as a number
of errors related to her Civil Service Retirement System (CSRS) disability
annuity computation. Initial Appeal File (IAF), Tab 1 at 1-9. The appellant
provided several attachments with her initial appeal, including an initial decision
from OPM dated January 21, 2020, denying her request challenging her CSRS
annuity computation. See id. at 47. The administrative judge issued an
acknowledgment order stating that the Board may not have jurisdiction over her
appeal, noting that the appellant had not provided evidence demonstrating that
OPM had issued a final or reconsideration decision regarding her claim. IAF,
Tab 2 at 2-3. Consequently, the administrative judge ordered the appellant to
provide evidence and argument establishing Board jurisdiction over her appeal,
and provided the agency with the opportunity to file a response to the appellant’s
jurisdictional filing. IAF, Tab 2 at 2-3. Both the appellant and the agency failed
to respond to the order. The administrative judge subsequently issued an initial
decision, dismissing the appeal for lack of jurisdiction because the appellant
failed to show that OPM had issued a reconsideration decision in her case. IAF,
Tab 3, Initial Decision (ID).
The appellant timely filed a petition for review alleging that the
administrative judge misidentified her former employing agency and that she had
provided a copy of OPM’s reconsideration decision with her initial appeal filing,
and restating her claim that there are uncorrected errors in her retirement record.
Petition for Review (PFR) File, Tab 3 at 1-2. The appellant also provided a copy
of a reconsideration decision from OPM dated April 30, 2020, regarding her2
challenge to her CSRS annuity computation. Id. at 4-6. The agency filed a
response requesting that the petition for review be denied, or in the alternative,
that the appeal be remanded to the regional office for further adjudication. PFR
File, Tab 6 at 4-5. The appellant did not file a reply to the agency’s response.
The Board generally has jurisdiction to review an OPM determination
affecting an appellant’s rights or interests under a retirement system only after
OPM issues a final or reconsideration decision. Tatum v. Office of Personnel
Management, 82 M.S.P.R. 96, ¶ 7 (1999); see 5 U.S.C. § 8347(d)(1); 5 C.F.R.
§ 831.110. An appellant bears the burden of establishing Board jurisdiction over
an appeal contesting an OPM reconsideration decision by preponderant evidence.2
Miller v. Office of Personnel Management , 123 M.S.P.R. 68, ¶ 7 (2015); 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
Despite the appellant’s assertion on review that she provided a copy of
OPM’s reconsideration decision with her initial appeal, see PFR File, Tab 3
at 1-2, at the time the appellant filed this appeal OPM had not yet issued a
reconsideration decision, see IAF, Tab 1 at 1. However, 9 days after the
appellant filed her Board appeal, OPM issued its April 30, 2020 reconsideration
decision, a copy of which the appellant provided with her petition for review. See
PFR File, Tab 3 at 4. Thus, although the appeal was premature at the time the
appellant filed it, the appeal had become ripe for adjudication after OPM issued
its reconsideration decision, before the administrative judge issued the initial
decision dismissing the appeal for lack of jurisdiction. See id.; ID at 1, 3. The
issue of jurisdiction is always before the Board and may be raised at any time.
Stoglin v. Department of the Air Force , 123 M.S.P.R. 163, ¶ 7 (2015), aff’d,
640 F. App’x 864 (Fed. Cir. 2016). Additionally, in circumstances where an
appeal was premature when it was filed but became ripe while pending with the
Board, the Board’s practice is to adjudicate such appeals. See Simnitt v.
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
Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 9 (2010) (noting that the
Board will adjudicate an appeal that was premature when it was filed but became
ripe while pending with the Board); Becker v. Department of Veterans Affairs ,
112 M.S.P.R. 516, ¶ 7 (2009) (same). Although the appellant failed to respond to
the administrative judge’s May 5, 2020 acknowledgment order, OPM had issued a
reconsideration decision at the time the acknowledgment order was issued, and
therefore this appeal was within the Board’s jurisdiction and ripe for adjudication
at that time.
ORDER
For the reasons discussed above, we vacate the initial decision 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 | Eaddy_Patricia_A_DC-0831-20-0558-I-1_Remand_Order.pdf | 2024-07-26 | PATRICIA A. EADDY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-20-0558-I-1, July 26, 2024 | DC-0831-20-0558-I-1 | NP |
842 | https://www.mspb.gov/decisions/nonprecedential/Hammond_John_B_PH-844E-19-0393-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN B. HAMMOND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-844E-19-0393-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah Bachmeyer Kille , Esquire, Lexington, Kentucky, for the appellant.
Albert Pete Alston, Jr. and Linnette Scott , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*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 application for Federal Employees’ Retirement System (FERS)
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).
disability retirement. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant is a WG-10 Wood Crafter for the Department of the
Interior’s Harper’s Ferry National Historical Park, Division of Planning and
Facility Management. Initial Appeal File (IAF), Tab 8 at 18. The appellant’s
duties involve carpentry projects related to the repair, improvement, maintenance,
and preservation of facilities and historic structures within the park. Id. at 113.
A Wood Crafter is a physically demanding position, which involves, in relevant
part, work on ladders, scaffolding, and slopes throughout the park’s hilly terrain.
Id. at 113-15.
In November 2015, the appellant sought medical treatment to relieve
longstanding but worsening pain in his left foot, attributable to a congenital bone
deformity. Id. at 137-39. The appellant underwent surgery on March 10, 2016,
and took leave until August 2016, when he returned work with restrictions of no
working on ladders, inclines, or heights, and no lifting more than 40 pounds. Id.2
128, 133-36. The agency provided the following accommodations for the
appellant’s condition: A man lift or scissor lift would be available in lieu of
ladders or scaffolding, he would be driven to and from work sites that would
otherwise require walking over more than 20% grade, and leave would be granted
if there was no work available within his restrictions. Id. at 101-02.
On May 16, 2017, the appellant sustained a bone fracture in his left foot
while working on uneven ground, and he again took leave from work until
July 24, 2017, when he returned with the same restrictions as before.2 Id.
at 116-25.
On or about October 5, 2017, the appellant filed an application for FERS
disability retirement, citing the condition of his left foot (fourth metatarsal
fracture, triple arthrodesis foot fusion, tarsal coalition, arthritis, and narrowing of
tibiotalar joint) and stating that it affected his ability to climb stairs and ladders,
stand for prolonged periods, and work on uneven ground, and that it negatively
affected his mood. Id. at 86-99. OPM denied the application, finding that the
appellant was not disabled from providing useful and efficient service as a Wood
Crafter. Id. at 56-61. The appellant requested reconsideration, and on July 19,
2019, OPM issued a final decision affirming its denial of the appellant’s
application. Id. 22-37.
The appellant filed a Board appeal, and after a hearing, the administrative
judge issued an initial decision affirming OPM’s final decision. IAF, Tab 21,
Initial Decision (ID). He found that the appellant failed to show that his medical
condition caused a deficiency in performance, attendance, or conduct, or that his
condition was incompatible with useful and efficient service or retention in the
Wood Crafter position. ID at 17-22.
The appellant has filed a petition for review, consisting of a letter from the
park Superintendent that recounts some additional facts about the appellant’s
2 The appellant alleged that his supervisor ordered him to perform this work even
though it was outside his medical restrictions. IAF, Tab 8 at 87. The injury was ruled
compensable. Id. at 76, 93.3
work history and disputes the accuracy of some of the witness testimony. Petition
for Review (PFR) File, Tab 1. OPM has filed a substantive response. PFR File,
Tab 3.
ANALYSIS
An employee bears the burden of proving by preponderant evidence his
entitlement to disability retirement. Snow v. Office of Personnel Management ,
74 M.S.P.R. 269, 273 (1997); 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for
disability retirement benefits under FERS, an individual must meet the following
requirements: (1) he must have completed 18 months of creditable civilian
service; (2) he must, while employed in a position subject to FERS, have become
disabled because of a medical condition resulting in a deficiency in performance,
conduct, or attendance, or if there is no such deficiency, the disabling medical
condition must be incompatible with either useful and efficient service or
retention in the position; (3) the disabling medical condition must be expected to
continue for at least 1 year from the date the application for disability retirement
is filed; (4) accommodation of the disabling medical condition in the position
held must be unreasonable; and (5) he must not have declined a reasonable offer
of reassignment to a vacant position. 5 U.S.C. § 8451; Lydon v. Office of
Personnel Management , 105 M.S.P.R. 152, ¶ 5 (2007), overruled on other
grounds by Henderson v. Office of Personnel Management , 117 M.S.P.R. 313
(2012); 5 C.F.R. § 844.103(a). In this case, the chief point of contention is
whether the appellant satisfied the second requirement, i.e., whether his foot
condition disabled him from rendering useful and efficient service in his position
as set forth in 5 U.S.C. § 8451(a)(1)(B) and 5 C.F.R. § 844.103(a)(2).
The administrative judge found that the appellant exhibited no performance
deficiencies related to his foot condition. ID at 17-18. The most recent
performance evaluation in the file reflects a summary rating of “fully successful”
with ratings of either “fully successful” or “superior” for each critical element,4
and there was otherwise no evidence of any performance deficiencies. IAF, Tab 8
at 98, 103-11. Nor did the administrative judge find a deficiency in attendance.
He acknowledged that the appellant took significant amounts of leave in 2016 and
2017 related to his surgery and compensable injury, respectively, but he found
that the appellant returned to work thereafter, and these discreet periods of
absence did not equate to a deficiency in attendance. ID at 18-19. The
administrative judge further acknowledged the appellant’s statement that the pain
in his foot affects his mood and his fear that he might “snap and say the wrong
thing and get written up,” but he found that the appellant cannot have
demonstrated a conduct deficiency based on something that has not happened. ID
at 19.
In the absence of a service deficiency, an employee can establish
entitlement to disability retirement benefits by proving that his condition is
incompatible with either useful and efficient service or retention in his position.
See Thieman v. Office of Personnel Management , 78 M.S.P.R. 113, 116 (1998).
The key question is whether the employee’s condition restricts him from
performing critical or essential job tasks. See id.; CSRS and FERS Handbook,
ch. 60, § 60A2.1–2(B) (Apr. 1998),
https://www.opm.gov/retirement-services/publications-forms/csrsfers-handbook/
c060.pdf (last visited July 25, 2024). In this regard, the administrative judge
recognized that the appellant was restricted from working on ladders, scaffolding,
and uneven ground, and thus there were certain tasks that he was unable to
perform. ID at 20-21. Nevertheless, he found that the appellant remained able to
perform most of the duties of his position of record, and that, despite the agency’s
accommodation of withholding certain tasks outside the appellant’s medical
restrictions, he continued to perform the duties of a Wood Crafter on a full-time
basis. ID at 21-22; see Benjamin v. Office of Personnel Management ,
45 M.S.P.R. 187, 190 (1990) (finding that accommodation by way of permanent
light duty precludes an award of disability retirement). The administrative judge5
distinguished the instant appeal from other cases in which light duty assignments
did not preclude disability retirement because they consisted of ad hoc tasks or
work that was not proper to the position of record. ID at 20-21; see, e.g., Marino
v. Office of Personnel Management , 243 F.3d 1375, 1377-78 (Fed. Cir. 2001);
Bracey v. Office of Personnel Management , 236 F.3d 1356, 1359-61 (Fed. Cir.
2001); Brickers v. Office of Personnel Management , 88 M.S.P.R. 669, ¶¶ 9-12
(2001).
On petition for review, the appellant does not directly contest any of the
administrative judge’s findings. Rather, the petition consists of a letter from the
park Superintendent. PFR File, Tab 1. As OPM correctly argues, the Board
generally will not consider evidence submitted for the first time on petition for
review absent a showing that it was previously unavailable despite the party’s due
diligence. PFR File, Tab 3 at 11; Sachs v. Office of Personnel Management ,
99 M.S.P.R. 521, ¶ 7 (2005); see 5 C.F.R. § 1201.115(d). We agree with OPM
that the appellant has not shown that the information in the Superintendent’s
letter satisfies this requirement. Although the letter itself postdates the initial
decision, the substance of the letter pertains entirely to matters predating the
close of the record below. PFR File, Tab 3 at 11; see Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989) (finding that, to constitute new and
material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed).
Furthermore, even if we were to consider the information in the
Superintendent’s letter, it would not provide a basis to disturb the initial decision.
The letter describes dysfunction and poor leadership within the Division of
Planning and Facility Management, including problems with the Maintenance
Supervisor (a witness at the hearing), against whom the appellant had filed a
claim of workplace harassment related to the duties he was being assigned. PFR
File, Tab 1 at 4-5. However, we find that these matters are immaterial to whether6
the appellant meets the legal standard for disability retirement. To the extent that
they are directed towards the Maintenance Supervisor’s credibility, it is well
settled that evidence offered merely to impeach a witness’s credibility is not
generally considered new and material. Bucci v. Department of Education ,
42 M.S.P.R. 47, 55 (1989).
The Superintendent also discusses the availability of the park’s man lift and
scissor lift for the appellant to use in lieu of ladders and scaffolding. PFR File,
Tab 1 at 5. There was some inconsistent testimony on this matter below, with the
appellant and another recently retired Wood Crafter testifying that the lifts are
often in disrepair and are unsuitable for use in many areas, and the Maintenance
Supervisor giving a more optimistic account of the availability and efficacy of
these machines. ID at 7-11, 13-14. The Superintendent disputes the Maintenance
Supervisor’s account. PFR File, Tab 1 at 5. However, the administrative judge
found it unnecessary to resolve this dispute of fact; even assuming that there are
many elevated projects that the appellant cannot work on because the lifts cannot
be used, he is still able to accomplish other Wood Crafter duties within his
medical limitations on a full-time basis. ID at 20-21. Likewise, the
Superintendent disputes the Maintenance Supervisor’s account of the percentage
of Wood Crafter duties that the appellant is able to perform. PFR File, Tab 1 at
5. However, regardless of what percentage of the full range of Wood Crafter
duties the appellant is able to perform, the record shows that they are sufficient to
support his continued full-time employment in that position.
In this regard, the Superintendent disagrees with the Maintenance
Supervisor that the Department of the Interior can have contractors or other
employees perform the Wood Crafter duties that are outside the appellant’s
medical restrictions; he opines that this is not a long-term solution and is not a
form of reasonable accommodation. PFR File, Tab 1 at 5. The Board has held
that using other workers to perform the essential functions of a disabled
employee’s position is not a form of reasonable accommodation under the7
Rehabilitation Act. Henry v. Department of Veterans Affairs , 100 M.S.P.R. 124,
¶ 13 (2005). But see 5 C.F.R. § 844.102 (stating that accommodation for
purposes of FERS disability retirement may include providing personal assistants
for the employee in question). However, the fact remains that the agency has
chosen to provide such accommodations to the appellant. In the absence of any
indication that the agency intends to revoke these accommodations or that the
appellant nonetheless cannot perform the duties of a Wood Crafter or another
established position of at least the same grade and pay, we discern no basis to
disturb 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.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you9
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: 10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Hammond_John_B_PH-844E-19-0393-I-1_Final_Order.pdf | 2024-07-26 | JOHN B. HAMMOND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-19-0393-I-1, July 26, 2024 | PH-844E-19-0393-I-1 | NP |
843 | https://www.mspb.gov/decisions/nonprecedential/MacPheat_William_R_DE-0831-23-0039-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM R. MACPHEAT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0831-23-0039-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William R. MacPheat , Missoula, Montana, 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
The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s reconsideration decision finding
that he was ineligible for a Civil Service Retirement System annuity. Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that he qualified for an annuity under the
exception in 5 U.S.C. § 8334(d)(2) and the administrative judge erred in not
ruling on the applicability of that exception. Petition for Review File, Tab 1
at 5-6, 9. An employee is entitled to credit under section 8334(d)(2)(B) only if he
is otherwise entitled to an annuity. Parker v. Office of Personnel Management ,
93 M.S.P.R. 529, ¶ 32 (2003), aff’d, 91 F. App’x 660 (Fed. Cir. 2004).
Section 8334(d)(2) “permits the crediting of service only if [an employee] is
entitled to [an annuity] based on other service.” Tavares v. Office of Personnel
Management, 94 M.S.P.R. 157, ¶ 15 (2003). Because the appellant’s refunded
retirement deductions covered the entirety of his Federal service, he has not
established that he is entitled to an annuity based on other service. Thus, the
exception in 5 U.S.C. § 8334(d)(2)(B) is not applicable here.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 | MacPheat_William_R_DE-0831-23-0039-I-1_Final_Order.pdf | 2024-07-26 | WILLIAM R. MACPHEAT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0831-23-0039-I-1, July 26, 2024 | DE-0831-23-0039-I-1 | NP |
844 | https://www.mspb.gov/decisions/nonprecedential/Tye_MichaelPH-844E-20-0204-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. TYE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-844E-20-0204-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael A. Tye , Feasterville Trevose, Pennsylvania, pro se.
Shawna Wheatley , 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)
dismissing his application for disability retirement as untimely filed and
determining that the appellant was not entitled to a waiver of the 1-year time limit
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).
for filing the application. 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
provide an analysis for the administrative judge’s conclusion that the appellant
failed to establish a basis for waiving the untimeliness of his disability retirement
application, we AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed with the Department of the Treasury, Internal
Revenue Service (IRS), when he was separated from his employment on June 27,
2015. Initial Appeal File (IAF), Tab 7 at 22, Tab 8 at 46, 83. In November 2017,
OPM received the appellant’s application for a disability retirement annuity under
the Federal Employees’ Retirement System (FERS). IAF, Tab 7 at 22. In his
statement of disability, the appellant asserted that he suffered from chronic lower
back pain, sciatica, mild anemia, severe bipolar depression, and breathing issues,
which affected his memory, ability to concentrate, energy level, and ability to
keep up with proper hygiene. IAF, Tab 8 at 37. The appellant dated the
application with May 17, 2016, and May 27, 2017, with a notation that the May2
27 date was a second request. Id. at 38, 45. OPM deemed his application filed in
June 2017. IAF, Tab 7 at 5, 22, 28.
OPM issued an initial decision dismissing the appellant’s application for
disability retirement as untimely filed more than 1 year after his separation from
service. Id. at 22-25. The letter explained that he did not file his application
within 1 year of his separation, as required by statute, and that the deadline could
not be waived because there was no evidence that he was mentally incompetent at
the time of his termination or became mentally incompetent during the following
year. Id. The appellant requested reconsideration of OPM’s initial decision. Id.
at 10-13. OPM issued a reconsideration decision sustaining its original decision
dismissing his application as untimely filed. Id. at 5-7. The appellant
subsequently filed an appeal of OPM’s reconsideration decision. IAF, Tab 1.
In a close-of-record order, the administrative judge apprised the appellant
of his burden of proving either that he timely filed a disability retirement
application or he was mentally incompetent during the relevant filing period, and
thus, entitled to a waiver of the filing deadline. IAF, Tab 12 at 2-4. The
administrative judge provided the parties with an opportunity to respond to the
order. Id. at 5. After neither party responded, she issued an initial decision
affirming OPM’s reconsideration decision. IAF, Tab 13, Initial Decision (ID)
at 1-2, 6-7. Because the appellant did not request a hearing, the decision was
based on the written record. ID at 1-2; IAF, Tab 1 at 1, Tab 2 at 1-2, Tab 10 at 1.
The administrative judge found the appellant failed to prove that he timely filed
his disability retirement application or he was entitled to a waiver of the filing
deadline based on mental incompetence. ID at 6-7. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has not
filed a response to the appellant’s petition for review.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to prove that he timely filed an application for disability
retirement.
On review, the appellant first argues that he truthfully represented the two
dates, in May 2016 and May 2017, on which he filed his disability retirement
application. PFR File, Tab 1 at 5. The administrative judge gave little weight
below to the appellant’s statements as to the date of filing, and we discern no
basis to do otherwise on review.
Under 5 U.S.C. § 8453, an application for disability retirement under FERS
must be filed with an employee’s employing agency before he separates from
service or with the former employing agency or OPM within 1 year after his
separation. See Bruce v. Office of Personnel Management , 119 M.S.P.R. 617, ¶ 7
(2013). The date of filing the application is the date of receipt by personal
delivery, or the date it was sent if the application was faxed or mail. 5 C.F.R.
§ 844.201(a)(2). Absent a postmark, a mailed application is presumed to have
been sent 5 days before its receipt. 5 C.F.R. § 844.201(a)(2). As the
administrative judge observed, the appellant’s employing agency stamped the
application as received in June 2017, 2 years after his separation. ID at 2; IAF,
Tab 8 at 43, 83. The appellant did not state, and the record does not reflect, via
what method he sent the application. IAF, Tab 1 at 7, Tab 7 at 15. Nor is there a
postmark associated with, or facsimile mark on, the application. IAF, Tab 8
at 43, 83. Accordingly, we presume that, at the earliest, the application was
mailed 5 days prior to when it was received by the appellant’s former employing
agency, which also would have been in June 2017. Id.; 5 C.F.R. § 844.201(a)(2).
Ordinarily, when an appellant certifies to the truthfulness of his statements
and signs the appeal form, the statements would be accorded sufficient weight to
rebut the presumption. Foust v. Department of the Treasury , 80 M.S.P.R. 477,
¶ 6 (1998) (giving weight to statement in appeal form, which the appellant
certified to be true by signing, concerning the date she received a letter).4
However, factors can affect the weight to be accorded to such hearsay evidence,
including the consistency of declarants’ accounts with other information in the
case, internal consistency, and their consistency with each other, and whether
corroboration for statements can otherwise be found in the record. Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 87 (1981).
Here, the administrative judge accorded little weight to the appellant’s
statement on the appeal form because it contradicted an earlier statement he
submitted to OPM. In his initial appeal, the appellant claimed that he timely
submitted his application but did not keep a copy, so he prepared and submitted a
new claim 1 year later. IAF, Tab 1 at 7. In his prior statement to OPM, he
claimed that he resubmitted his prior application after retrieving it from storage.
IAF, Tab 7 at 15. Applying the relevant Borninkhof factors, we agree with the
administrative judge that the appellant’s certified statement on his initial appeal
and his statement to OPM are not sufficient to rebut the presumption of untimely
filing. His statements were inconsistent with each other. Further, in his petition
for review, he claims that he found his original application while packing his
belongings to go to storage, which is inconsistent with his statement to OPM that
he retrieved the application from storage. PFR File, Tab 1 at 5. It is also
inconsistent with his statement in his original appeal that he did not keep a copy
of his prior application. Id. Thus, the administrative judge correctly found that
the appellant’s statements regarding when he submitted his application were
entitled to little weight.
The appellant also argues that the administrative judge erred in determining
that he put both dates on the application on the same day. PFR File Tab 1 at 5;
ID at 6. He maintains that the form was signed and dated on two separate dates.
Id. We discern no basis to disturb this finding because the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service ,5
74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 257, 359 (1987) .
The appellant failed to prove that he is entitled to a waiver of the 1-year time
limit based on mental incompetence.
Because we have affirmed that the appellant’s retirement application was
untimely filed, the remaining issue in this case is whether the appellant showed
that he was mentally incompetent during the period from June 27, 2015, to
June 26, 2016. Without providing an analysis, the administrative judge affirmed
OPM’s determination that the appellant failed to establish his entitlement to a
waiver of the filing deadline based on mental incompetence. ID at 6. We agree
with the administrative judge but modify the initial decision to provide an
analysis justifying her conclusion.
The 1-year filing time limit for filing an application for disability
retirement may be waived if the employee was mentally incompetent at the date
of separation or became mentally incompetent within 1 year thereafter, and the
application is filed with OPM within 1 year from the date the employee is
restored to competency or is appointed a fiduciary, whichever is earlier. 5 U.S.C.
§ 8453; Bruce, 119 M.S.P.R. 617, ¶ 7. The appellant has the burden of proving,
by preponderant evidence, that he was mentally incompetent during the relevant
filing period. King v. Office of Personnel Management , 112 M.S.P.R. 522, ¶ 7
(2009).
The definition of mental incompetence “may be satisfied by one having
some minimal capacity to manage his own affairs, and not needing to be
committed”; the applicant need not show that he was a “raving lunatic
continuously.” See French v. Office of Personnel Management , 810 F.2d 1118,
1120 (Fed. Cir. 1987) (interpreting the same language as it applies to applicants
for disability retirement annuities under the Civil Service Retirement System). In
determining whether an individual was mentally incompetent during the relevant
filing period, the Board requires medical evidence supporting subjective opinions6
of mental incompetence. Arizpe v. Office of Personnel Management , 88 M.S.P.R.
463, ¶ 9 (2001).
In its initial decision and a subsequent letter, OPM advised the appellant
that it could waive the 1-year time limit based on a showing of incompetence.
IAF, Tab 7 at 22-24, 28. The appellant submitted to OPM unsworn statements
from his sister, his girlfriend, and himself, along with notes from his psychiatrist
and clinical summaries of medical appointments with his physician. IAF, Tab 7
at 10-12, 15-18, 31-43, 47-48. The statements indicate that the appellant suffered
from severe depression and bipolar disorder. Id. at 10-12, 16-18. Notes from his
psychiatrist indicate that he was diagnosed with bipolar depression disorder and
major depressive disorder and was unable to work. Id. at 31-33. The clinical
summaries chronicle his treatment for various medical issues including pain in his
hand, hyperlipidemia, high blood pressure, and dysmetabolic syndrome. Id.
at 34-43, 47-48. While the clinical summaries list depressive disorder as an
active problem, there is no additional information or an explanation of the
diagnosis. Id. at 39, 43, 48.
While we find that the appellant established that he was affected by bipolar
disorder and major depressive disorder, the medical reports fail to establish
mental incapacity such as is necessary to waive the filing time limit. In Pilcher v.
Office of Personnel Management , 96 M.S.P.R. 317, ¶ 24 (2004), the Board held
that the physician’s statement that the appellant was mentally incompetent was
entitled to little or no weight because it provided no explanation for its
conclusion and was not accompanied by any supporting documentation.
Similarly, here the psychiatrist’s notes and physician’s clinical summaries
indicate his diagnosis is bipolar depression disorder and major depressive
disorder but fail to include a medical report or examination to substantiate the
diagnosis.
In their statements, the appellant, his sister, and his girlfriend asserted that
his depression and bipolar disorder caused him to forget things, affected his7
ability to focus, and made him withdraw from social interactions and disregard
personal hygiene. IAF, Tab 7 at 10-12, 16-19; Tab 8 at 37. This evidence,
without a supporting medical report, is insufficient to determine that the appellant
was mentally incompetent during the relevant period. See Crane v. Office of
Personnel Management , 55 M.S.P.R 16, 18-19 (1992) (finding that it is error for
an administrative judge to rely upon the testimonies of the appellant and her
husband to find mental incapacity, absent a supporting medical report). Further,
medical evidence that does not provide a time at which mental deterioration
commenced or the degree to which the condition affected the appellant’s
competence is insufficient to establish incompetency. Savage v. Department of
the Air Force, 30 M.S.P.R. 665, 668 (1986). Here, the psychiatrist’s notes
indicate the appellant began treatment for depression around 2014 or 2015 and
was unable to work as of May 2018 but offer no details as to the appellant’s
competency or lack thereof. IAF Tab 7 at 30-33. Therefore, we agree with the
administrative judge that the appellant has failed to show that he was mentally
incompetent during the filing period.
On review, the appellant did not provide any evidence of his mental
incompetence during the relevant period. He only asserted that he failed to
respond to the administrative judge’s close-of-record conference because his dog
died and his depression medication barely kept him functional. PFR File, Tab 1
at 4. Because it appears these events occurred after the 1-year period for filing
his disability retirement application, these facts are not relevant here. Thus, we
find that the appellant’s assertion does not provide a reason to disturb the initial
decision.
Lastly, the appellant reasserts on review that he has a pending union
grievance challenging, as relevant here, his termination date. PFR File, Tab 1
at 5; IAF, Tab 1 at 7. He claims that the grievance is on hold, pending a
determination of his claim for disability with the Social Security Administration
(SSA). PFR File, Tab 1 at 5; IAF, Tab 1 at 7. He contends that the 1-year time8
limit should “be a little more lenient” in consideration of this situation. Under
5 U.S.C. § 1204(h), the Board is statutorily precluded from issuing advisory
opinions. The appellant’s request asks the Board to consider speculative facts
that are not in evidence and circumstances that may not occur to determine that
his retirement application was timely filed. The Board may not, and will not,
engage in conjecture as to how his grievance and SSA claim will be resolved.
See McLaughlin v. Office of Personnel Management , 62 M.S.P.R. 536, 554-55
(1994) (declining to consider an appellant’s hypothetical scenarios that would
require the Board to issue an advisory opinion, which is specifically forbidden by
statute), aff’d per curiam , 47 F.3d 1181 (Fed. Cir. 1995) (Table). The record
evidence reflects that his termination is June 27, 2015.
Since filing his petition for review in August 2020, the appellant has not
sought to submit new evidence of any change in his termination date. As such,
we find that the appellant’s contention is not sufficient to find that OPM erred in
dismissing his disability retirement application as untimely filed. Thus, the
appellant failed to establish a basis for waiving the statutory time limit for filing
his application for disability retirement, and we affirm the initial decision.
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
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.9
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 file11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Tye_MichaelPH-844E-20-0204-I-1_Final_Order.pdf | 2024-07-26 | MICHAEL A. TYE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-20-0204-I-1, July 26, 2024 | PH-844E-20-0204-I-1 | NP |
845 | https://www.mspb.gov/decisions/nonprecedential/McDowell_TyroneNY-3443-23-0024-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYRONE MCDOWELL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-3443-23-0024-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tyrone McDowell , Lockport, New York, pro se.
Justina L. Lillis , Esquire, Cheektowaga, 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
¶1The appellant has filed a petition for review of the initial decision, which
dismissed this appeal concerning the assignment of duties for lack of jurisdiction
and for untimeliness. The appellant raises a whistleblower reprisal claim for the
first time on review. He asserts reasons for extending the filing deadline for any
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 claim. 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
address the appellant’s new whistleblower reprisal claim, we AFFIRM the initial
decision to the extent that the administrative judge found the Board lacks
jurisdiction over the appeal. We VACATE as unnecessary the administrative
judge’s finding that the appeal was untimely filed.
¶2The administrative judge found that the appellant did not raise a claim of
whistleblower reprisal. Initial Appeal File (IAF), Tab 12, Initial Decision (ID)
at 4. She concluded that, in any event, any such claim would be untimely filed.
ID at 5-6. The appellant asserts a whistleblower reprisal claim for the first time
on review. Petition for Review (PFR) File, Tab 3 at 7-9. Although he did not
make this claim below, we consider it here. The issue of Board jurisdiction is
always before the Board and may be raised by either party or sua sponte by an
administrative judge or the Board at any time during a Board proceeding. See
Engler v. Department of the Navy , 69 M.S.P.R. 109, 114 (1995). Nonetheless, we
find the appellant did not establish jurisdiction over his claims.
¶3To establish jurisdiction over an individual right of action (IRA) appeal, an
appellant must have exhausted his administrative remedies before the Office of2
Special Counsel (OSC) and make nonfrivolous allegations of the following:
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221; Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The substantive requirements of
exhaustion are met when an appellant has provided OSC with sufficient basis to
pursue an investigation. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. An appellant has not exhausted his administrative remedy
for purposes of an IRA appeal when his complaint to OSC alleged a prohibited
personnel practice, but not whistleblower reprisal. Davis v. Department of
Defense, 103 M.S.P.R. 516, ¶ 11 (2006); see Clemente v. Department of
Homeland Security , 101 M.S.P.R. 519, ¶ 13 (2006) (finding that a disclosure of
agency wrongdoing to OSC does not satisfy the exhaustion requirement).
¶4The administrative judge issued a detailed order that set forth the
appellant’s burdens of proof at the jurisdictional and merits stages of an IRA
appeal and described the allegations and evidence he needed to submit. IAF,
Tab 4. In response, the appellant submitted a copy of his OSC complaint and his
correspondence with OSC. IAF, Tab 5 at 18-34, 37-38, 45-46, 49-61. The OSC
complaint reveals that he did not select the boxes for retaliation claims but did so
for “improper personnel actions” and “other” under the “other claims” category.
Id. at 20-21. He asserted to OSC that the assignment of certain duties violated
agency policy and merit systems principles. Id. at 30. The appellant also
submitted OSC’s August 22, 2022 letter closing out its investigation. IAF, Tab 1
at 7. In that letter, OSC advised the appellant that it had determined that it lacked
evidence that the assignment of the Controlled Substances Coordinator position
violated a law, rule, or regulation and concluded that agencies had wide
discretion to assign duties to employees. Id. 3
¶5The appellant’s submissions to OSC do not mention whistleblowing, section
2302(b)(8)-(9), or reprisal for whistleblowing. IAF, Tab 5; see Davis,
103 M.S.P.R. 516, ¶ 11. Additionally, the appellant selected “no” on the Board’s
appeal form for whether he had filed a whistleblower complaint with OSC. IAF,
Tab 1 at 4, Tab 5 at 4. He asserted that his Board appeal had nothing to do with
whistleblower reprisal, discrimination, or a prior EEO complaint. IAF, Tab 5
at 4, Tab 8 at 9. In sum, we find that the appellant has not exhausted his
administrative remedy because he did not allege whistleblower reprisal before
OSC concerning the assignment of duties.
¶6In view of our determination that the Board lacks jurisdiction over this
appeal, we vacate as unnecessary the administrative judge’s finding that the
appeal was untimely filed. ID at 5-6. Therefore, we do not address the
appellant’s new arguments and evidence requesting that the Board waive the time
limit. PFR File, Tab 3 at 10-16.
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
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
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | McDowell_TyroneNY-3443-23-0024-I-1_Final_Order.pdf | 2024-07-26 | TYRONE MCDOWELL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-3443-23-0024-I-1, July 26, 2024 | NY-3443-23-0024-I-1 | NP |
846 | https://www.mspb.gov/decisions/nonprecedential/Krich_Stacy__M_DC-531D-23-0283-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACY MARIE KRICH,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
DC-531D-23-0283-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacy Marie Krich , Silver Spring, Maryland, pro se.
Darin B. Tuggle , 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 appeal of a denial of a within -grade increase 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2Observing that the appellant raised distinct and unrelated claims of reprisal
for whistleblowing and a violation of her veteran’s preference rights in her
responses to the jurisdictional orders below, the administrative judge noted in the
initial decision that she could file a new appeal with the Washington Regional
Office for adjudication of those claims . Initial Appeal File, Tab 10, Initial
Decision at 5. Although she did not file new appeals with the regional office, the
appellant indicated in her petition for review that she would like to file such an
appeal. Petition for Review File, Tab 1 at 5. Accordingly, we forward these
claims to the Washington Regional Office for docketing.2
2 The administrative judge may, at his discretion, adjudicate these claims together, or
docket them as separate appeals. We make no finding regarding Board jurisdiction or
the timeliness of the appeals, but note that the appellant sought to file a new appeal in
her April 7, 2023 petition for review. On July 22, 2024, the agency filed a “Global
Settlement Agreement and General Release,” which the appellant signed on March 24,
2023, and the agency signed on March 27, 2023. Under the terms of the agreement, the
appellant waives her right to file claims “regarding any matter that was or could have
been raised” prior to its execution, “with the exception of the worker’s compensation
claim and MSPB Docket No. DC-531D-23-0283-I-1 that have already been filed.”
Petition for Review File, Tab 3 at 5. As these claims were raised in this pending
matter, the settlement agreement does not preclude the appellant from pursuing those
claims before the Board merely because they are docketed separately in accordance with2
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:
Board procedure.
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 | Krich_Stacy__M_DC-531D-23-0283-I-1_Final_Order.pdf | 2024-07-26 | STACY MARIE KRICH v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. DC-531D-23-0283-I-1, July 26, 2024 | DC-531D-23-0283-I-1 | NP |
847 | https://www.mspb.gov/decisions/nonprecedential/King_RandyAT-1221-23-0096-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY KING,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-1221-23-0096-W-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Ricci , Esquire, Albany, New York, for the appellant.
Michael Fallings , Esquire, Austin, Texas, for the appellant.
Christopher Hawthorne , 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 individual right of action appeal for lack of jurisdiction.
On petition for review, the appellant disagrees with both bases the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
judge relied upon to find jurisdiction lacking. Petition for Review File,
Tab 1 at 10-12. Despite the administrative judge’s finding to the contrary, the
appellant argues that he proved by preponderant evidence that he exhausted his
administrative remedies with the Office of Special Counsel, id. at 10-12, and he
argues that he presented the requisite nonfrivolous allegations of protected
disclosures, id. at 12-17.2 Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
2 We recognize the dispute about whether the appellant proved the exhaustion element
of his jurisdictional burden. See Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶¶ 5, 10-11 (explaining the exhaustion element and how an appellant can
meet their corresponding burden). However, because we agree with the administrative
judge’s conclusion that the appellant did not present nonfrivolous allegations of a
protected disclosure, which is another element required to establish jurisdiction, we
make no finding about exhaustion. See Gabel v. Department of Veterans Affairs ,
2023 MSPB 4, ¶¶ 5-6 & n.3 (explaining what constitutes a nonfrivolous allegation of a
protected disclosure).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, 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 and4
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 | King_RandyAT-1221-23-0096-W-1_Final_Order.pdf | 2024-07-26 | RANDY KING v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-1221-23-0096-W-1, July 26, 2024 | AT-1221-23-0096-W-1 | NP |
848 | https://www.mspb.gov/decisions/nonprecedential/Jimenez_Ruben_O_DA-0752-22-0336-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUBEN O. JIMENEZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-22-0336-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ruben O. Jimenez , Humble, Texas, pro se.
John Farrell , Esquire, and Thomas A. Behe , 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
sustained the agency’s chapter 75 removal action. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 With his petition for review, the appellant resubmits two legal decisions that he
provided to the administrative judge and provides a copy of an April 24, 2017 “On-The-
Spot Award” letter. Petition for Review File, Tab 1 at 12-68. These documents are
neither new nor material to the outcome of this appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Jimenez_Ruben_O_DA-0752-22-0336-I-1_Final_Order.pdf | 2024-07-26 | RUBEN O. JIMENEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-22-0336-I-1, July 26, 2024 | DA-0752-22-0336-I-1 | NP |
849 | https://www.mspb.gov/decisions/nonprecedential/Hayden_AileenCH-315H-20-0504-I-1_FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AILEEN HAYDEN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-315H-20-0504-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Noel Williams , Columbus, Ohio, for the appellant.
C. Michael Meehan , Esquire, Columbus, Ohio, for the agency.
Shy Y. Wang , Esquire, Whitehall, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her trial-period termination appeal for lack of jurisdiction. On review,
she argues that she has Board appeal rights because she was appointed to a
full-time position. Petition for Review File, Tab 3 at 4. She re-raises her Equal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Employment Opportunity claims and asserts she was granted state unemployment
benefits partially because her termination was unjustified. 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
jurisdiction. 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 | Hayden_AileenCH-315H-20-0504-I-1_FInal_Order.pdf | 2024-07-26 | AILEEN HAYDEN v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-315H-20-0504-I-1, July 26, 2024 | CH-315H-20-0504-I-1 | NP |
850 | https://www.mspb.gov/decisions/nonprecedential/Hornsby_Harold_D_DA-0752-23-0138-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD D. HORNSBY,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DA-0752-23-0138-I-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harold D. Hornsby , Grand Prairie, Texas, pro se.
Sierra Langford , Esquire, and Christina Parel , Esquire, Suitland, 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 the appeal for lack of jurisdiction. On petition for review, the appellant
argues, among other things, that he nonfrivolously alleged that the Board has
jurisdiction over this matter as an individual right of action (IRA) appeal, he
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
made a nonfrivolous allegation of a constructive reduction in pay or grade and/or
a constructive removal, and the administrative judge erred in denying his request
for the agency to produce its file, including the Equal Employment Opportunity
Commission (EEOC) complaint file. Petition for Review File, Tab 3. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2The administrative judge correctly determined that the Board lacks
jurisdiction over this matter as an IRA appeal because the appellant did not prove
that he exhausted his administrative remedy with the Office of Special Counsel.
Initial Appeal File, Tab 19, Initial Decision at 5. The appellant, on review, does
not provide any evidence to show that the administrative judge erred in this
regard. Accordingly, we need not address, among other things, the appellant’s
arguments regarding whether he nonfrivolously alleged that he made a
whistleblowing disclosure or engaged in protected activity that was a contributing
factor in the agency’s decision.
¶3Additionally, the appellant has not nonfrivolously alleged that the agency’s
actions, i.e., the alleged extension of the time-limited appointment and rescission2
of that appointment, constitute a constructive reduction in pay or grade or a
constructive removal. 5 U.S.C. § 7512. In the absence of an otherwise
appealable action, the Board lacks jurisdiction to adjudicate claims of
discrimination or any other affirmative defenses. See, e.g., Pridgen v. Office of
Management and Budget , 117 M.S.P.R. 665, ¶ 7 (2012) (stating that the Board
does not have jurisdiction over discrimination claims absent an otherwise
appealable action); Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980)
(finding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an
independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.
1982). We also discern no error with the administrative judge’s decision to deny
the appellant’s request to compel the agency to turn over the comprehensive
EEOC file because the Board lacks jurisdiction over his discrimination claims.
¶4We have considered the appellant’s remaining arguments on review, but
none warrant a different outcome.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Because we are affirming the administrative judge’s decision to dismiss the appeal for
lack of jurisdiction, we need not resolve whether the appeal was timely filed.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hornsby_Harold_D_DA-0752-23-0138-I-1_Final_Order.pdf | 2024-07-26 | HAROLD D. HORNSBY v. DEPARTMENT OF COMMERCE, MSPB Docket No. DA-0752-23-0138-I-1, July 26, 2024 | DA-0752-23-0138-I-1 | NP |
851 | https://www.mspb.gov/decisions/nonprecedential/Taylor_TanyaCB-7121-23-0003-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANYA TAYLOR,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
CB-7121-23-0003-V-1
DATE: July 26, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tanya Taylor , White Plains, Maryland, pro se.
Kristin Murrock , Suitland, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a request for review of an arbitrator’s decision that
denied her grievance of her removal. For the reasons set forth below, we
DISMISS the appellant’s request for review for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was formerly employed as a GS-13 Budget Analyst with the
U.S. Census Bureau. Request for Review (RFR) File, Tab 1 at 9. Effective
June 28, 2021, the agency removed the appellant based on charges of receipt of
pay for time not worked, absence without leave, and failure to pay government
issued travel card balance as required. RFR File, Tab 1 at 309. The appellant’s
union filed a grievance on her behalf, and the matter proceeded to arbitration. Id.
at 314-29, 331-34. On September 12, 2022, the arbitrator issued a decision
denying the appellant’s grievance in its entirety. Id. at 329.
On December 1, 2022, the appellant filed an appeal challenging the
arbitration decision with the Board’s Washington Regional Office, and it was
forwarded to the Office of the Clerk of the Board for docketing as a request for
review of an arbitrator’s decision. RFR File, Tabs 1-3. In her request for review,
she asserted that the agency engaged in prohibited personnel practices and
coerced and bullied her into a confession. RFR File, Tab 1 at 6. She also alleged
that the State of Maryland had determined that her removal was not supported by
preponderant evidence. Id.
The Office of the Clerk of the Board issued an acknowledgment order that
set forth the jurisdictional and timeliness requirements that the appellant must
meet to obtain review of the arbitration decision. RFR File, Tab 4 at 2-3. It
ordered the appellant to file evidence and argument to prove that the Board has
jurisdiction over the request for review and that the request for review was timely
or there existed good cause for any delay in filing her request for review. Id.
The appellant has responded, RFR File, Tab 5, the agency has responded in
opposition, RFR File, Tab 7, and the appellant has replied to the agency’s
response, RFR File, Tab 8.2
2 We need not address the timeliness of the appellant’s request for review in light of our
decision to dismiss the appellant’s request for lack of jurisdiction.2
ANALYSIS
The appellant has the burden of proof, by preponderant evidence, that the
Board has jurisdiction over her request for review. Scanlin v. Social Security
Administration, 2022 MSPB 10, ¶ 4; see 5 C.F.R. § 1201.56(b)(2)(i)(A). The
Board has jurisdiction over a request for review of an arbitration decision 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
discrimination under 5 U.S.C. § 2302(b)(1) with the arbitrator in connection with
the underlying action, or (ii) raises a claim of discrimination in connection with
the underlying action under 5 U.S.C. § 2302(b)(1) 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, 2022 MSPB 10, ¶ 4;
5 C.F.R. § 1201.155(a)(1), (c).
Applying this jurisdictional standard, we conclude that the appellant has
not established Board jurisdiction over her request for review of the arbitrator’s
decision because she has not raised a claim of discrimination under 5 U.S.C.
§ 2302(b)(1). Discrimination claims included under 5 U.S.C. § 2302(b)(1) are
those based on race, color, religion, sex, national origin, disability, and age;
claims of reprisal for engaging in protected equal employment opportunity
activity; and claims of discrimination based on marital status or political
affiliation. In her request for review, the appellant asserts generally that the
agency used bullying and harassment tactics and engaged in prohibited personnel
practices, but she has not alleged, nor alluded to, discrimination prohibited by
section 2302(b)(1). RFR File, Tab 1 at 6. Her responses to the acknowledgment
order, in which she was informed of this jurisdictional requirement, also contain
no allegations of discrimination. RFR File, Tab 5 at 3, Tab 8 at 3.
Moreover, as it appears the appellant’s governing collective bargaining
agreement allows for claims of discrimination to be raised in a grievance
proceeding, the appellant is required to show that she raised a claim of3
discrimination before the arbitrator to establish Board jurisdiction. RFR File,
Tab 1 at 106; see Scanlin, 2022 MSPB 10, ¶ 4. The appellant has not argued that
she raised a discrimination claim during arbitration, and the arbitrator’s decision,
which provides a lengthy summary of the position of the union but contains no
mention of a discrimination claim, is strong evidence that she did not. RFR File,
Tab 1 at 322-24.
Accordingly, we find that the appellant has failed to meet her burden of
proving that the Board has jurisdiction over her request for review. The
appellant’s request for review of the arbitrator’s decision is dismissed 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Taylor_TanyaCB-7121-23-0003-V-1_Final_Order.pdf | 2024-07-26 | TANYA TAYLOR v. DEPARTMENT OF COMMERCE, MSPB Docket No. CB-7121-23-0003-V-1, July 26, 2024 | CB-7121-23-0003-V-1 | NP |
852 | https://www.mspb.gov/decisions/nonprecedential/Simelton_Cathea_M_AT-0752-17-0741-I-2_and_AT-0752-20-0121-I-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATHEA M. SIMELTON,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
AT-0752-17-0741-I-2
AT-0752-20-0121-I-2
DATE: July 26, 2024
THIS ORDER IS NONPRECEDENTIAL1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Debra D’Agostino , Esquire, and Louise E. Ryder , Esquire,
Washington, D.C., for the appellant.
Juan Carlos Alarcon , Rory Layne , Esquire, and Domiento Hill , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The agency has filed a petition for review of the initial decision in Simelton
v. Department of Agriculture , MSPB Docket No. AT-0752-17-0741-I-2, which
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reversed the appellant’s removal pursuant to 5 U.S.C. chapter 75 on due process
grounds. The appellant has filed a petition for review of the initial decision in
Simelton v. Department of Agriculture , MSPB Docket No. AT-0752-20-0121-I-2,
which sustained her subsequent removal under the procedures of 5 U.S.C.
chapter 43. For the reasons discussed below, we JOIN the appeals on our own
motion.2 We GRANT the agency’s petition for review in the 0741 matter and
VACATE the initial decision. We GRANT the appellant’s petition for review in
the 0121 matter and VACATE the initial decision. We REMAND both appeals to
the regional office for further adjudication in accordance with this Remand Order .
BACKGROUND
¶2The appellant was formerly employed by the agency as an Equal
Opportunity Specialist until the agency removed her for unacceptable
performance, effective August 11, 2017. Simelton v. Department of Agriculture ,
MSPB Docket No. AT-0752-17-0741-I-1, Initial Appeal File (0741 IAF), Tab 8
at 18-26. As authority for its action, the agency’s proposal notice and Standard
Form 50 documenting the removal cited the regulations at 5 C.F.R. part 432. Id.
at 18, 33. The appellant filed a Board appeal challenging her removal and raising
affirmative defenses of discrimination based on race, sex, and disability,
whistleblower retaliation, and harmful procedural error. 0741 IAF, Tab 1 at 6,
Tab 15 at 6. In her prehearing submission, the appellant asserted that the agency
could not meet its burden of proof in support of its action under 5 U.S.C.
chapter 43 because it could not show that the Office of Personnel Management
(OPM) had approved its performance appraisal system. 0741 IAF, Tab 15 at 7.
Noting that this issue was potentially dispositive, the administrative judge
ordered the parties to submit written briefs on the issue. 0741 IAF, Tab 27 at 4.
In response, the agency argued that OPM had properly approved its performance
2 On our own motion, we have joined these appeals pursuant to 5 C.F.R.
§ 1201.36(a)(2), (b). We find that joinder is appropriate because it will expedite the
processing of these appeals and will not adversely affect the interests of the parties. 2
appraisal system but, in the alternative, it requested to proceed with processing
the appeal under 5 U.S.C. chapter 75 if the administrative judge determined that it
could not proceed under chapter 43. 0741 IAF, Tab 28 at 4-5. According to the
parties, during a status conference on or about March 9, 2018, the administrative
judge indicated his preliminary intent to rule against the agency on this issue.
0741 IAF, Tab 33 at 4; Simelton v. Department of Agriculture , MSPB Docket
No. AT-0752-17-0741-I-2, Petition for Review (0741 PFR) File, Tab 1 at 11-12.
Thereafter, the administrative judge dismissed the appeal without prejudice to
allow further consideration of this, and other, issues. 0741 IAF, Tab 34.
¶3After the appeal was refiled, the agency moved to have the removal action
considered under the procedures and requirements of chapter 75 rather than
chapter 43. Simelton v. Department of Agriculture , MSPB Docket No. AT-0752-
17-0741-I-2, Refiled Appeal File (0741 RAF), Tab 3. The appellant opposed the
agency’s motion, asserting, among other things, that the agency’s proposal and
decision letters failed to state how the removal would “promote the efficiency of
the service,” and thus, that she lacked the opportunity to argue to the agency’s
deciding official regarding the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (the Douglas factors). 0741 RAF,
Tab 4 at 8-10. The administrative judge granted the agency’s motion and
redocketed the appeal as a chapter 75 appeal. 0741 RAF, Tab 5. The parties
were permitted an opportunity to engage in further discovery as it pertained to the
new issues presented as an adverse action under chapter 75. Id. at 2. After
holding a partial hearing, the administrative judge issued an initial decision
reversing the removal action on due process grounds.3 0741 RAF, Tab 39, Initial
Decision (0741 ID). In particular, he found that the deciding official’s failure to
consider the Douglas factors amounted to a violation of the appellant’s
3 Having determined that there was a due process violation, the administrative judge
adjourned the hearing after a portion of the deciding official’s testimony, without
hearing the testimony of the agency’s remaining witnesses or the appellant’s witnesses.
0741 RAF, Tab 34-5, Hearing Recording, at 5:30-8:30. 3
constitutional due process rights. 0741 ID at 6-8 (citing Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368, 1374-75 (Fed. Cir. 1999)). The agency
filed a petition for review, which the appellant opposed. 0741 PFR File,
Tabs 1, 3.
¶4While the agency’s petition for review was pending in the 0741 matter, on
May 24, 2019, the agency reissued a new proposal to remove the appellant for
unacceptable performance, pursuant to 5 U.S.C. chapter 43. Simelton v.
Department of Agriculture , MSPB Docket No. AT-0752-20-0121-I-1, Initial
Appeal File (0121 IAF), Tab 13 at 104-20. The new proposal was premised on
the same alleged performance issues that predicated the first removal action. Id.;
0741 IAF, Tab 8 at 33-47. The appellant submitted oral and written responses to
the proposal. E.g., 0741 IAF, Tab 7 at 40-60, 93-100. By letter dated
September 19, 2019, the deciding official sustained the May 2019 proposed
removal, and the agency removed the appellant from Federal service. 0121 IAF,
Tab 25 at 38-46. The appellant filed a Board appeal challenging the second
removal action and raising affirmative defenses of retaliation for engaging in
protected equal employment opportunity (EEO) activity and violations of her due
process rights. 0121 IAF, Tab 1; Simelton v. Department of Agriculture , MSPB
Docket No. AT-0752-20-0121-I-2, Refiled Appeal File (0121 RAF), Tab 13
at 30-33. After a hearing, the administrative judge4 upheld the appellant’s
removal and denied her affirmative defenses. 0121 RAF, Tab 15, Initial Decision
(0121 ID). The appellant filed a petition for review, and the agency filed a
response. Simelton v. Department of Agriculture , MSPB Docket No. AT-0752-
20-0121-I-2, Petition for Review (0121 PFR) File, Tabs 4, 6.
4 The 0121 appeal was assigned to a different administrative judge than the
0741 appeal.4
DISCUSSION OF ARGUMENTS ON REVIEW
We reverse the administrative judge’s finding that the agency committed a due
process violation regarding the first removal action and remand the 0741 appeal
for further adjudication.
¶5In its petition for review in the 0741 matter, the agency disputes what it
characterizes as the administrative judge’s oral ruling that OPM had not approved
its performance appraisal system. 0741 PFR File, Tab 1 at 15-19. Although
unclear, it does not appear that the administrative judge orally ruled that the
agency’s performance system was not approved by OPM but, rather, that he
appears to have notified the parties of his intent to do so. 0741 IAF, Tab 33 at 4;
0741 PFR File, Tab 1 at 11-12. According to the agency, during the status
conference, the administrative judge verbally informed the parties that he
intended to rule against the agency on this issue and, therefore, reverse the
removal of the appellant, but he wanted additional time to consider the
ramifications of the appellant’s affirmative defenses. 0741 PFR File, Tab 1
at 11-12. This is consistent with the initial decision that dismissed the appeal
without prejudice. 0741 IAF, Tab 34 at 3-4. Regardless, the record reflects that
the agency moved to process the appeal pursuant to chapter 75 rather than
chapter 43, the administrative judge granted the agency’s motion, and a partial
hearing was held construing the agency’s action under chapter 75. 0741 RAF,
Tabs 3, 5, 34. The agency did not object to proceeding under chapter 75 and did
not pursue an interlocutory appeal concerning any alleged ruling it believed that
the administrative judge had made on the chapter 43 issue.5 See 5 C.F.R.
§§ 1201.91-1201.93. Thus, we find that, at this stage of the appeal, the agency
cannot now challenge the administrative judge’s order granting its motion to
process the appeal as a chapter 75 removal appeal. Cf. McCarthy v. International
5 The agency asserts on review that the administrative judge’s purported oral ruling
prevented it from filing an interlocutory appeal. 0741 PFR File, Tab 1 at 15. However,
there is no evidence that the agency requested a written ruling or otherwise objected to
the administrative judge’s purported oral ruling.5
Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 25 (2011) (finding that
the appellant’s failure to timely object to rulings during the hearing precluded his
doing so on petition for review), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); Tarpley
v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (finding that the appellant’s
failure to timely object to the administrative judge’s rulings on witnesses
precluded his doing so on petition for review).
¶6We find, however, that the administrative judge erred in finding that the
agency’s failure to consider the Douglas factors amounted to a due process
violation. According to the initial decision, the deciding official testified that, at
the time she made her decision to remove the appellant, she did not consider any
mitigating factors under Douglas. 0741 ID at 7-8. The administrative judge
found that this constituted a “clear-cut due process violation” under Stone. Id.
Thus, the administrative judge found that the appellant was not afforded a
meaningful opportunity to invoke the deciding official’s discretion concerning the
penalty prior to her removal. Id. For the reasons set forth below, we disagree.
¶7In Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985),
the Supreme Court held that the government’s failure to provide a tenured public
employee with an opportunity to present a response, either in person or in writing,
to an action that deprives him of his property right in his employment constitutes
an abridgement of his constitutional right to due process of law. The Court
explained that the minimum due process requirements are notice of the charges
against the employee, an explanation of the employer’s evidence, and an
opportunity for the employee to present his side of the story and explain why a
proposed action should not be taken. Loudermill, 470 U.S. at 546. The Court
further explained that the opportunity to respond to a proposed adverse action is
valuable in rendering an accurate decision because an adverse action will often
involve factual disputes, and consideration of the employee’s response may
clarify such disputes. Id. at 543; see Stone, 179 F.3d at 1376. Further, “[e]ven
where the facts are clear, the appropriateness or necessity of the [penalty] may6
not be,” and in such cases, the employee must receive a “meaningful opportunity
to invoke the discretion of the decisionmaker.” Loudermill, 470 U.S. at 543; see
Stone, 179 F.3d at 1376; see also Buelna v. Department of Homeland Security ,
121 M.S.P.R. 262, ¶ 28 (2014) (holding that an appellant’s due process rights
under Loudermill include the right to invoke the discretion of a deciding official
with authority to select from available alternative penalties). Thus, “the
employee’s response is essential not only to the issue of whether the allegations
are true, but also with regard to whether the level of penalty to be imposed is
appropriate.” Stone, 179 F.3d at 1376.
¶8We disagree with the administrative judge’s finding that the appellant’s
constitutional due process right to invoke the discretion of a deciding official
under Loudermill requires an agency to expressly consider the Douglas factors.
The nature of the Board’s review of the reasonableness of an agency-imposed
penalty derives from the Civil Service Reform Act of 1978 and is not a matter of
constitutional right. See Ryan v. Department of Homeland Security , 793 F.3d
1368, 1372 (Fed. Cir. 2015) (noting that, in Douglas, the Board addressed the
question of whether its statutory authority includes authority to modify or reduce
a penalty imposed on an employee by an agency’s adverse action). Further, as
the Board noted in Douglas, the factors are nonexhasutive, and not all of the
factors will be pertinent in every case. Douglas, 5 M.S.P.R. at 305-06; see also
Farrell v. Department of the Interior , 314 F.3d 584, 594 (Fed. Cir. 2002) (noting
that the U.S. Court of Appeals for the Federal Circuit does not require the Board
to consider every one of the 12 Douglas factors); Nagel v. Department of Health
and Human Services , 707 F.2d 1384, 1386 (Fed. Cir. 1983) (noting that the Board
“never intended that each [ Douglas] factor be applied mechanically” and that
“neither statute nor regulation requires an agency to demonstrate that it
considered all mitigating factors”); Chavez v. Small Business Administration ,
121 M.S.P.R. 168, ¶ 9 (2014) (stating that a deciding official does not have to
consider each of the Douglas factors in making his penalty determination). 7
¶9Moreover, the Board has not reversed agency actions on due process
grounds when an agency fails to properly consider the Douglas factors. Rather,
the Board has held that, when an agency fails to properly consider the Douglas
factors, the Board need not defer to the agency’s penalty determination. See, e.g.,
Wiley v. U.S. Postal Service , 102 M.S.P.R. 535, ¶ 15 (2006), aff’d, 218 F. App’x
1001 (Fed. Cir. 2007); Omites v. U.S. Postal Service , 87 M.S.P.R. 223, ¶¶ 10-11
(2000); Wynne v. Department of Veterans Affairs , 75 M.S.P.R. 127, 135 (1997);
Harper v. Department of the Air Force , 61 M.S.P.R. 446, 448 (1994); see also
McClaskey v. Department of Energy , 720 F.2d 583, 588 (9th Cir. 1983) (rejecting
the petitioner’s argument that the agency failed to weigh the Douglas factors and
holding that the relevant inquiry is whether the Board applied the Douglas
factors, whether or not the agency applied those criteria), aff’d, 720 F.2d 583 (9th
Cir. 1983).6 Under such circumstances, the Board has the authority to mitigate an
agency’s penalty. See Lachance v. Devall , 178 F.3d 1246, 1251, 1260 (Fed. Cir.
1999) (setting forth the Board’s authority to mitigate an agency’s penalty after
consideration of the relevant Douglas factors if it finds the agency’s penalty too
severe); Douglas, 5 M.S.P.R. at 306 (stating that, only if the Board finds that the
agency failed to weigh the relevant factors, or that the agency’s judgment clearly
exceeded the limits of reasonableness, is it appropriate for the Board then to
specify how the agency’s decision should be corrected to bring the penalty within
the parameters of reasonableness).
¶10Here, the record reflects that the appellant was afforded advance written
notice of her removal based on her alleged performance deficiencies and the
agency’s reasons for her removal. 0741 RAF, Tab 8 at 10-24. She was also
afforded a meaningful opportunity to respond orally and in writing, which
included a meaningful opportunity to invoke the discretion of the deciding
6 The decisions of circuit courts, other than the Federal Circuit, are generally not
binding on the Board, but the Board may follow such decisions if it is persuaded by the
court’s reasoning, as we are here. See Bowman v. Small Business Administration ,
122 M.S.P.R. 217, ¶ 13 n.8 (2015). 8
official with the authority to select from available alternative penalties.7
0741 RAF, Tab 7 at 32, Tab 8 at 4-9; see Loudermill, 470 U.S. at 543; Buelna,
121 M.S.P.R. 262, ¶ 28. In her written response, the appellant, who was
represented by counsel, disputed the merits of the agency’s charge and challenged
the reasonableness of the penalty, noting that she had no prior performance issues
and had received numerous awards, accolades, and letters of recognition.
0741 RAF, Tab 8 at 8-9. Under these circumstances, we find that the appellant
was afforded the minimum predecisional due process required regarding her
removal, and we reverse the administrative judge’s finding to the contrary. See
Loudermill, 470 U.S. at 545-46 (finding that the predecisional opportunity for an
employee to respond “need not definitively resolve the propriety of the [action]”
but rather “should be an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action”). Because we find
that the agency did not violate the appellant’s due process rights by failing to
consider the Douglas factors, we remand the 0741 appeal for further adjudication,
as further explained below.
The 0121 appeal is remanded for further adjudication.
¶11At the time the initial decision was issued in the AT-0752-20-0121-I-2
appeal, the Board’s case law stated that, in a performance-based appeal under
5 U.S.C. chapter 43, an agency must establish by substantial evidence the
following: (1) OPM approved its performance appraisal system and any
7 Although the appellant and the deciding official may have been considering chapter 43
rather than chapter 75 procedures at the time, the appellant still had reason and
opportunity to invoke the deciding official’s discretion in this regard, and she did so.
0741 RAF, Tab 8 at 9. Under chapter 43 procedures, an agency deciding official has
the discretion to choose to address unacceptable performance in different ways. See
5 U.S.C. § 4303(a). Nothing in the record suggests that the deciding official could not
have chosen to impose a demotion in lieu of removal, or to take no action at all. See id.
To the contrary, the proposal and decision notices contain statements indicating that the
agency had concerns about the appellant’s retention in any agency position given her
discourteous and unprofessional behavior. 0741 RAF, Tab 7 at 37, Tab 8 at 22.9
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of her position; (3) the appellant’s
performance standards are valid; (4) the agency warned the appellant of the
inadequacies of her performance during the appraisal period and gave her a
reasonable opportunity to demonstrate acceptable performance; and (5) the
appellant’s performance remained unacceptable in one or more of the critical
elements for which she was provided an opportunity to demonstrate acceptable
performance. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5
(2010).8 The administrative judge addressed each of these elements in turn and
found that the agency carried its burden on all of them. 0121 ID at 11-17. He
also found that the appellant did not prove her affirmative defenses. 0121 ID
at 17-25. We have considered the appellant’s arguments on review but find no
basis to disturb the administrative judge’s findings.9
¶12However, we must nonetheless remand the 0121 appeal because, after the
issuance of the 0121 initial decision, the Federal Circuit issued its decision in
8 In his initial decision, the administrative judge set forth the standard as found in
Kadlec v. Department of the Army , 49 M.S.P.R. 534, 539 (1991). 0121 ID at 4-5. This
formulation omits the fifth element, i.e., that the agency must show by substantial
evidence that the employee’s performance remained unacceptable. Nevertheless, the
administrative judge explicitly addressed this element in his initial decision. 0121 ID
at 14-17.
9 In evaluating the appellant’s EEO retaliation defense, the administrative judge applied
the evidentiary standards set forth in Savage v. Department of the Army , 122 M.S.P.R.
612, ¶¶ 41-43, 51 (2015). 0121 ID at 18-21. He explained that, under Savage, the
burden-shifting framework of McDonnell Douglas Corporation v. Green , 411 U.S. 792,
802-04 (1973), did not apply to Board proceedings, and the ultimate question was
whether the appellant had met her burden of proving by preponderant evidence that
retaliation was a motivating factor in the action being appealed. 0121 ID at 18. In
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 25, the Board overruled
the aspect of Savage stating that the McDonnell Douglas burden-shifting framework
does not apply to Board proceedings. Under Pridgen, however, it remains true that an
employee must show that retaliation was at least a motivating factor in the employment
decision to obtain any relief. Pridgen, 2022 MSPB 31, ¶¶ 30-33. We find no reason to
disturb the administrative judge’s finding that the appellant did not prove that EEO
retaliation was at least a motivating factor in the agency’s decision to remove her.
0121 ID at 18-21.10
Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021). In Santos, the court held for the first time that, in addition to the
elements of a chapter 43 case just described, an agency must also show that the
initiation of the performance improvement plan (PIP) was justified by the
appellant’s unacceptable performance before the PIP. 990 F.3d at 1360-63. Prior
to Santos, it was well established that an agency need not prove unacceptable
performance prior to a PIP, see Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 13, and thus, the administrative judge did not make a
determination on this issue. However, the Federal Circuit’s decision in Santos
applies to all pending cases, including this one, regardless of when the events
took place. Id., ¶¶ 15-16. Thus, remand is necessary for the administrative judge
to address the additional requirement set forth in Santos.
¶13We recognize that the viability of the 0121 appeal is dependent upon the
outcome of the 0741 appeal. If the 0741 appeal is affirmed, the 0121 appeal is
moot. See Jackson v. U.S. Postal Service , 79 M.S.P.R. 144, 146-47 (1998)
(dismissing as moot the appeal of a second removal action after the earlier action
was sustained). If the 0741 appeal is reversed, the viability of the 0121 appeal
depends on the reasons for the reversal. An agency may not discipline an
employee twice for the same conduct. See, e.g., Frederick v. Department of
Homeland Security , 122 M.S.P.R. 401, ¶¶ 6-10 (2015); Gartner v. Department of
the Army, 104 M.S.P.R. 463, ¶¶ 5-6 (2007); Westbrook v. Department of the Air
Force, 77 M.S.P.R. 149, 155 (1997). On the other hand, an agency may bring a
second action on the same charges when the previous action was reversed solely
on procedural grounds. See, e.g., Steele v. General Services Administration ,
6 M.S.P.R. 368, 372 (1981); see also Special Counsel v. Smith , 116 M.S.P.R. 520,
¶ 9 (2011); Strope v. U.S. Postal Service , 76 M.S.P.R. 539, 542 (1997).
Instructions on remand
¶14On remand, the appeals should be assigned to a single administrative judge
for a supplemental hearing and further processing. The appeals should remain11
joined until the record on remand is closed, at which point the administrative
judge may determine whether, in his or her discretion, the appeals should remain
joined for purposes of issuing a decision.
¶15It appears that the hearing in the 0741 appeal was adjourned prior to the
conclusion of the agency’s case in chief. Accordingly, the administrative judge
shall conduct a supplemental hearing to allow both parties to put on evidence as
to the chapter 75 appeal. As explained in the 0741 initial decision, the appellant
agreed to waive her affirmative defenses at the hearing after the administrative
judge announced his intent to reverse the agency’s action on due process grounds,
but she reserved the right to reinstate such affirmative defenses if the initial
decision was reversed. 0741 ID at 8 n.6. Under these circumstances, we instruct
the administrative judge to afford the appellant an opportunity at the
supplemental hearing to establish her affirmative defenses, should she wish to
reinstate them. The administrative judge shall then issue a remand initial
decision.
¶16The administrative judge need only address the merits of the 0121 appeal if
it is appropriate to do so following resolution of the 0741 appeal. If the
administrative judge addresses the merits of the 0121 appeal, the parties must be
permitted an opportunity, at the supplemental hearing, to address the new element
under Santos, and the remand initial decision must include such analysis. Lee,
2022 MSPB 11, ¶ 17. If the agency makes the additional showing required under
Santos on remand, the administrative judge may reincorporate in the remand
initial decision the prior findings concerning the other elements of the agency’s
case and on the appellant’s EEO retaliation affirmative defense, as clarified
herein. See id. However, regardless of whether the agency meets its burden, if
the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the appellant’s affirmative defenses, the administrative judge
should address such argument or evidence in the remand initial decision. See
Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980)12
(explaining that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests).
ORDER
¶17For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Simelton_Cathea_M_AT-0752-17-0741-I-2_and_AT-0752-20-0121-I-2_Remand_Order.pdf | 2024-07-26 | CATHEA M. SIMELTON v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. AT-0752-17-0741-I-2, July 26, 2024 | AT-0752-17-0741-I-2 | NP |
853 | https://www.mspb.gov/decisions/nonprecedential/Wafer_TeneishiaDA-315H-21-0022-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TENEISHIA WAFER,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-315H-21-0022-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Teneishia Wafer , Natchitoches, Louisiana, pro se.
Jeryl M. McDowell , Washington, D.C., for the agency.
John Hippe , Esquire, Cheyenne, Wyoming, 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 probationary termination appeal for lack of jurisdiction.
On petition for review, the appellant argues the merits of her termination,
alleging she was denied full training, performed her work adequately under 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).
circumstances, and did not receive any disciplinary action prior to her
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
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
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FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Wafer_TeneishiaDA-315H-21-0022-I-1_Final_Order.pdf | 2024-07-25 | TENEISHIA WAFER v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-315H-21-0022-I-1, July 25, 2024 | DA-315H-21-0022-I-1 | NP |
854 | https://www.mspb.gov/decisions/nonprecedential/Burgos_Osvaldo_R_DC-0752-20-0067-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OSVALDO RAMON BURGOS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-20-0067-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Osvaldo Ramon Burgos , Arlington, Virginia, pro se.
Teresa A. Gonsalves , Esquire, Camp Springs, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a GS-09 Management and Program Analyst
in the Office of Performance Quality (OPQ) of the U.S. Citizenship and
Immigration Services (USCIS) in Washington, D.C. Initial Appeal File (IAF),
Tab 4 at 42. The agency proposed the appellant’s removal based on the charge of
improper conduct. Id. at 62-66. Under its sole specification, the agency stated
that the appellant telephoned the Federal Bureau of Investigation (FBI) National
Threat Operations Center, and made the following statements concerning the OPQ
Chief: (1) “If I wanna knock [him] out, I should be able to get away with it,”
(2) “I’m gonna cripple his white old ass is what I’m gonna do,” and
(3) “Somebody needs to do something or else I’m gonna take action myself. And
I feel like I have to hurt this guy.” Id. at 62. The agency noted that, in addition
to making “statements of workplace violence in reference to [the OPQ Chief],”
the appellant accused the OPQ Chief, his former supervisor, and his
then-supervisor of preventing his career advancement. Id. at 62-63. After
considering the appellant’s oral and written replies, the agency removed him from
his position, effective May 29, 2019. Id. at 43-48.2
Thereafter, the appellant filed an appeal with the Board, alleging that the
agency wrongfully terminated him based on “[disparate] treatment and race.”
IAF, Tab 1 at 5. He also alleged that the agency retaliated against him for filing
16 complaints and withheld his promotion, gave him performance appraisals with
false information, bullied and sabotaged him, and subjected him to a toxic work
environment. Id. The administrative judge ordered the appellant to identify the
affirmative defenses he was raising in this appeal. IAF, Tab 6. The appellant
responded that he was pursuing claims of misuse of official position,
whistleblower retaliation, harmful error, and prohibited personnel practices
(which he described as race discrimination, disparate treatment, favoritism, and
harassment). IAF, Tab 8 at 4-6. Under a category that he labeled as fraud, the
appellant indicated that he made complaints to the Office of Special Counsel,
Inspector General, Office of Equal Employment Opportunity, Office of Special
Investigations, a Congressman, and the FBI, but none of his complaints were
“approved.” Id. at 5.
The parties proceeded to engage in a lengthy discovery dispute. Without
providing any detail or explanation, the appellant objected to the agency’s
discovery requests, which included requests for admissions, interrogatories, and
documents regarding the charged conduct, his allegations relating to the appeal,
the witnesses he intended to call and their expected testimony, any
communications relating to the appeal, and his claims for relief. IAF, Tab 9
at 27-33. The agency filed a motion to compel, stating that the information it
sought was clearly relevant to the appeal and discoverable under the Board’s
regulations, that it had made “diligent and concerted good faith efforts to obtain
discovery responses from the [a]ppellant,” and that the appellant’s response were
“wholly inadequate because of the vague nature of [the] responses and [the
appellant’s] failure to provide any information or documents.” Id. at 5-6. In the
same motion, the agency moved for imposition of sanctions. Id. at 6-7. The
appellant responded with a second set of objections, asserting that he had already3
provided some of the requested information as part of the agency investigation,
that some of the information the agency sought was privileged or protected by
privacy concerns, and that he did not possess some of the information or did not
know the witnesses he was going to call. IAF, Tab 12 at 4-10. The agency filed
a supplement to its motion to compel, stating that, although the appellant
responded to some of its discovery requests, he did not respond to the vast
majority of its requests, including its requests for documents and admissions, and
that the appellant’s deposition testimony contravened his assertion that he did not
have any relevant documents. IAF, Tab 13 at 4-5. The administrative judge
granted the agency’s motion to compel discovery, ordered the appellant to
provide substantive responses to the agency’s discovery requests, and warned the
appellant that failure to substantially comply with the order would result in the
imposition of sanctions pursuant to 5 C.F.R. § 1201.43, to include the dismissal
of his affirmative defenses. IAF, Tab 14 at 2.
Thereafter, the appellant filed a motion for the administrative judge to
reconsider her order granting the agency’s motion to compel.2 IAF Tab 16 at 4.
The appellant also asserted that he had previously provided sufficient responses
to the agency’s discovery requests and he provided what were apparently his most
recent responses to the agency’s requests. Id. at 4-10. The agency responded that
the appellant’s motion to reconsider should be denied, that the appellant’s most
recent responses failed to “cure the many deficiencies identified in the [a]gency’s
Motion to Compel and supporting submissions,” and that the administrative judge
should impose sanctions because of the appellant’s “repeated and knowing refusal
to comply with his discovery obligations.” IAF, Tab 19 at 4. Specifically, the
agency argued that the appellant failed to provide, among other things, most of
the documents he identified in his deposition and his other submissions, including
2 The appellant also filed a motion to compel, asserting that the agency had not
answered his interrogatories. IAF, Tab 15 at 4. The administrative judge denied this
motion. IAF, Tab 20. The appellant has not challenged the administrative judge’s
ruling, and we discern no reason to disturb it. 4
evidence purportedly showing that he was treated unfairly by the agency, a text
message allegedly showing that his call to the FBI was not a threat, and copies of
the numerous complaints he had filed with various entities. Id. at 5. The agency
also argued that the appellant failed to identify, by name, the individuals with
knowledge of his affirmative defenses and continued to represent that he did not
know the witnesses he would call, despite prehearing submissions being
imminently due. Id. at 6, 9, 11-12. The agency concluded that, just prior to the
hearing, because of the appellant’s failure to properly engage in discovery, it had
“little to no knowledge of the nature of [a]ppellant’s affirmative defenses, how
they relate to the removal appeal, and what evidence or witness testimony, if any,
[the] [a]ppellant has to support them.” Id. at 6.
After reviewing the record, the administrative judge found that the
appellant had “failed to substantially comply” with the agency’s discovery
requests as she had previously ordered and she granted the agency’s motion for
sanctions. IAF, Tab 21. The administrative judge struck the appellant’s
affirmative defenses and stated that she would not “adjudicate any of the
appellant’s claimed affirmative defenses in this matter.” Id.
Following a hearing, the administrative judge issued an initial decision that
affirmed the appellant’s removal. IAF, Tab 49, Initial Decision (ID), Hearing
Transcript (HT). In analyzing the charge, the administrative judge credited the
testimony of an investigator who testified that during an interview the appellant
admitted making the statements to the FBI call center attributed to him and that
he believed that the appellant could carry out his threats, especially considering
that he had access to the OPQ Chief and it was his second time contacting the FBI
hotline. ID at 6-8; HT at 53-54, 57. The administrative judge observed that an
appellant’s admission can suffice to establish the charge without additional proof
from the agency and that the appellant elected not to testify on his own behalf.
ID at 8. Based on these findings and the other evidence in the record, the
administrative judge sustained the charge of improper conduct. Id. The5
administrative judge stated that she had not accepted any evidence or adjudicated
the appellant’s affirmative defenses because she had granted the agency’s motion
to sanction the appellant by striking such claims. ID at 9. Finally, the
administrative judge found that the agency proved nexus and the reasonableness
of the penalty. ID at 9-15.
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, PFR File, Tab 3,
to which the appellant has untimely replied,3 PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency proved the charged
misconduct, the presence of a nexus, and that the penalty of removal was
reasonable .
A charge of “improper conduct” has no specific elements of proof; rather, it
is established by showing that the employee committed the acts alleged in support
of the label used by the agency in the charge. Alvarado v. Department of the Air
Force, 103 M.S.P.R. 1, ¶ 22 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009),
aff’d, 490 F. App’x 932 (10th Cir. 2012). Based on the testimony of the agency
witnesses, the documentary evidence, and the appellant’s admission, the
administrative judge sustained the charge of improper conduct. ID at 4-8; IAF,
Tab 4 at 74-75, 104, 106, 114 -116, 119. The appellant does not challenge this
finding on review and we discern no reason to disturb it. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
3 The Clerk of the Board informed the appellant that he could file a reply to the
agency’s response to the petition for review within 10 days after the date of service of
the response. PFR File, Tab 2. The appellant’s reply to the agency’s response was
untimely filed by over 2 weeks and the appellant has offered no explanation for the
filing delay. PFR File, Tab 4. Nonetheless, we consider his reply, which appears to
largely reiterate the allegations in his petition for review.6
credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same).
In addition to proving its charge by preponderant evidence, the agency
must establish the existence of a nexus between the charged misconduct and the
efficiency of the service. See 5 U.S.C. § 7513(a); Campbell v. Department of the
Army, 123 M.S.P.R. 674, ¶ 24 (2016). The administrative judge determined that
there was a direct relationship between the charged misconduct and the efficiency
of the service. ID at 9; see Brown v. Department of the Navy , 229 F.3d 1356,
1360-61 (Fed. Cir. 2000) (finding nexus on the basis of off-duty misconduct that
adversely affected the agency’s mission); Beasley v. Department of Defense ,
52 M.S.P.R. 272, 273, 275 (1992) (finding nexus on the basis of off -duty
misconduct that caused apprehension among agency management for the safety of
other agency employees). Therefore, the administrative judge found, and we
agree, that the agency satisfied the nexus requirement. ID at 9.
Finally, the agency must demonstrate that the penalty imposed was within
the bounds of reasonableness and that it considered the relevant factors.
Campbell, 123 M.S.P.R. 674, ¶ 25; Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 -07 (1981). In making this determination, the Board must
give due weight to the agency’s primary role in maintaining employee discipline
and efficiency and must not displace management’s responsibility, but must
ensure that managerial judgment has been properly exercised. Campbell,
123 M.S.P.R. 674, ¶ 25. Here, the administrative judge found that the deciding
official properly considered the relevant Douglas factors, such as the seriousness
and the notoriety of the appellant’s offense, his prior discipline, the consistency
of the penalty with those imposed upon other employees for the same or similar
offenses and with the agency’s table of penalties, management’s lack of
confidence in his ability to perform the duties of his position, and the mitigating
circumstances in this case. ID at 10 -15; IAF, Tab 4 at 43-45. The deciding
official also stated he believed that an alternate sanction was not appropriate7
under the circumstances here. IAF, Tab 4 at 45. We discern no reason to disturb
the administrative judge’s finding that removal was a reasonable penalty.
ID at 15.
The administrative judge did not abuse her discretion in striking the appellant’s
affirmative defenses.
In his petition for review, the appellant asserts that the administrative judge
was unfair, extremely biased, and favored the agency. PFR File, Tab 1 at 5.
Among other things, he asserts that, even though he was diligently trying to
comply with the agency’s discovery requests, the administrative judge struck his
affirmative defenses.4 Id.
Administrative judges have broad discretion to regulate the proceedings
before them, including the authority to rule on discovery motions and to impose
sanctions as necessary to serve the ends of justice. Defense Intelligence Agency
v. Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015); Roth v. Department of
Transportation, 54 M.S.P.R. 172, 175-76 (1992); see 5 C.F.R. § 1201.43
(discussing the circumstances under which an administrative judge may impose
sanctions, including failure to comply with an order). Imposition of sanctions is a
matter within the administrative judge’s sound discretion and, absent a showing
that such discretion has been abused, the Board will not find that the decision
constitutes reversible error. Smets v. Department of the Navy, 117 M.S.P.R. 164,
¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012).
Here, the administrative judge struck the appellant’s affirmative defenses
because she found that the appellant’s responses to the agency’s discovery
requests did not substantially comply with her order. IAF, Tab 21. The record
4 On review, the appellant reiterates his assertions that he was bullied and harassed and
treated unfairly by agency management. PFR File, Tab 1 at 4. He specifies that his
supervisors falsified his performance appraisals, placed him on a performance
improvement plan, and denied him promotions in reprisal for the equal employment
opportunity complaints and grievances that he filed. Id. We find it unnecessary to
address the merits of his claims, which were also raised below, because we discern no
abuse of discretion in the administrative judge’s imposition of a sanction and his vague
allegations, without any evidentiary support, are insufficient to satisfy his burden.8
reflects that the appellant provided inadequate responses to the agency’s
discovery requests on multiple occasions, despite a warning from the
administrative judge that his noncompliance could result in the striking of his
affirmative defenses. IAF, Tab 9 at 27-33, Tab 12 at 4-10, Tab 14 at 2, Tab 19
at 4-20. Thus, it was within the administrative judge’s discretion to impose this
sanction under the circumstances.5
The appellant’s remaining arguments are unavailing.
On review, the appellant asserts, for the first time, that there were eight
unidentified employees who were suspended, not removed, for misconduct similar
to his, including making statements that they were going to kill their supervisors
or others, causing altercations, stealing, and using Facebook to intimidate private
citizens. PFR File, Tab 1 at 4-5. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). Even if we were to consider this claim, the appellant does not provide
any evidence as to the circumstances surrounding those purported incidents,
including the sustained charges, the employees’ positions, or other specific
5 We recognize that the Board has generally discouraged the striking of affirmative
defenses as a sanction for failure to comply with an order when the same result might
be achieved by prohibiting the appellant from presenting evidence supporting those
defenses. Simon v. Department of Commerce , 111 M.S.P.R. 381, ¶ 14 (2009 ).
However, even if the administrative judge abused her discretion in striking the
appellant’s affirmative defenses, and should have instead prohibited the appellant from
putting on evidence in support of any affirmative defense to which he had not provided
discovery responses, 5 C.F.R. § 1201.43(a)(2), the imposition of the lesser sanction
would not have compelled a different result. Here, the appellant did not present any
factual allegations which, if taken as true, support his affirmative defenses; thus, he
would have failed to meet his burden of proof regarding those affirmative defenses if,
instead of striking the defenses, the administrative judge had precluded the presentation
of hearing testimony regarding the affirmative defenses. The appellant has not shown
that any abuse of discretion prejudiced his substantive rights. See Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984 ).9
circumstances.6 Moreover, the deciding official testified that she considered the
consistency of the penalty with those imposed upon other employees for the same
or similar offenses but concluded that removal was the appropriate penalty. HT
at 80; IAF, Tab 4 at 45. Thus, even if we were to consider it, we find that the
appellant has not shown that the eight unidentified employees are valid
comparators for the purposes of the appellant’s disparate penalty claim. See Voss
v. U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6 (2013) (finding that to establish
disparate penalties, the appellant must show that the charges and the
circumstances surrounding the charged behavior in his case are substantially
similar to those in the comparator’s case).
The appellant contends that the administrative judge was biased because
she ruled against him at each step of his case. PFR File, Tab 1 at 5. 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 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). The appellant has not identified any conduct by the
administrative judge that would reflect antagonism or favoritism, nor has he
raised any allegations that would support a finding of bias. That an
administrative judge ruled against the appellant is insufficient evidence to show
bias. Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶ 11 (2004). Thus, we
find that the appellant has not overcome the presumption of honesty and integrity
that accompanies an administrative judge.
6 There is no indication in the record that during the discovery process the appellant
requested that the agency provide the decision letters for other employees. 10
The appellant argues that, as opposed to her treatment of the agency, the
administrative judge did not allow him to call any witnesses. PFR File, Tab 1
at 5. On the contrary, the administrative judge approved the appellant and two of
his witnesses as joint witnesses. IAF, Tab 39 at 3. At the hearing, the appellant
did not testify in support of his appeal and engaged in limited cross-examination
of the parties’ joint witnesses. HT at 35-38, 58.
Below, the appellant objected to the administrative judge’s decision not to
approve the other witnesses he had requested. IAF, Tab 39 at 3 & n.3, Tab 42
at 4; HT at 102. In a motion objecting to her rulings in the prehearing
conference, the appellant asserted that the testimony of the American Federation
of Government Employees (union) vice president and an Immigration and
Customs Enforcement (ICE) agent was critical for his case. IAF, Tab 42 at 4. He
noted that the union vice president sat in every grievance meeting held with his
former managers at the agency and that he could testify regarding “the misuse of
official position by [a]gency officials, including [the USCIS Deputy] and [the
OPQ Chief].” Id. In addition, he noted that the ICE agent contacted him the day
after his phone call to the FBI National Threat Operations Center and that he
“took an assessment to find a threat was not made by [him].” Id. The agency
filed a motion in opposition, stating that the identified witnesses were not
mentioned in any of the appellant’s responses to the agency’s discovery requests
and his deposition testimony. IAF, Tab 43 at 4-6. The agency opined that any
relevant knowledge that the union vice president had was already reflected in the
appellant’s reply to the proposed removal and that the ICE agent did not have any
relevant knowledge because he was neither involved in the removal action nor the
subject of the appellant’s statements of workplace violence. Id. at 5-6. After
reviewing the parties’ motions, the administrative judge issued an order in which
she noted the appellant’s objections and comments for the record but denied and
overruled them. IAF, Tab 44. She did not provide her reasons for doing so. Id.
She also declined to reconsider her prior rulings. Id. 11
The appellant has not persuaded us that the administrative judge abused her
discretion in disallowing the testimony of the ICE agent and the union vice
president. In the Order and Summary of Telephonic Prehearing Conference, the
administrative judge identified the issues to be adjudicated as whether the agency
proved its charge of improper conduct, nexus, and the reasonableness of the
penalty. IAF, Tab 39. Although the ICE agent would purportedly testify as to
whether the appellant made a threat, the administrative judge specifically
observed that intent is not an element of the charge and that it is irrelevant to
whether he engaged in the charged misconduct. Id. at 2-3. As for the union
representative, he would purportedly have testified to issues beyond the scope of
those identified in the Order and Summary of Telephonic Prehearing Conference.
Thus, we discern no basis for concluding that the administrative judge’s decision
amounted to an abuse of discretion. See Vaughn v. Department of the Treasury ,
119 M.S.P.R. 605, ¶ 12 (2013) (explaining that an administrative judge has wide
discretion to control the proceedings, including the authority to exclude testimony
he believes would be irrelevant, immaterial, or unduly repetitious); 5 C.F.R.
§ 1201.41(b)(8), (10).
Accordingly, we affirm the initial decision.12
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any14
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s15
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Burgos_Osvaldo_R_DC-0752-20-0067-I-1__Final_Order.pdf | 2024-07-25 | OSVALDO RAMON BURGOS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-20-0067-I-1, July 25, 2024 | DC-0752-20-0067-I-1 | NP |
855 | https://www.mspb.gov/decisions/nonprecedential/Danzey_Matthew_D_NY-1221-20-0118-W-1__FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW D. DANZEY,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
NY-1221-20-0118-W-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo Lee , Jenkintown, Pennsylvania, for the appellant.
Kealin Culbreath , 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
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
address the appellant’s jurisdictional response in greater detail, we AFFIRM the
initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
In addressing the evidence and argument that the appellant submitted
below, the administrative judge appears to have overlooked the appellant’s main
jurisdictional pleading. Initial Appeal File (IAF), Tab 5 at 34-36. We consider it
now.
The appellant bears the burden of proving jurisdiction over an appeal.
5 C.F.R. § 1201.56(b)(2) To establish jurisdiction over an IRA appeal, an
appellant must show that he exhausted his administrative remedies before the
Office of Special Counsel (OSC) and make nonfrivolous allegations that (1) he
made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined under
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Whether allegations are2
nonfrivolous is determined on the basis of the written record. Massie v.
Department of Transportation , 114 M.S.P.R. 155, ¶ 11 (2010). Once an appellant
establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the
merits of his claim. Salerno, 123 M.S.P.R. 230, ¶ 5.
We first consider the exhaustion requirement. Under 5 U.S.C. § 1214(a)
(3), an employee is required to seek corrective action from OSC before seeking
corrective action from the Board. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The exhaustion requirement is met when the
appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11. 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.
In determining whether the appellant has satisfied the exhaustion
requirement, we have considered the March 4, 2020 closeout letter and notice of
appeal rights, the February 19, 2020 letter from OSC, and the body text of the
appellant’s additional correspondence with an OSC attorney. IAF, Tab 1 at 8, 13,
Tab 5 at 5-25. Because the appellant states, under penalty of perjury, that he
provided OSC with the brief timeline included in his response to the jurisdictional
order, we have considered it as well. IAF, Tab 5 at 26-29, 34. We have not,
however, pored over the voluminous additional documents found at Tabs 6
through 25. See Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 18 n.23
(2002). To the extent those documents may refer to additional alleged disclosures
and retaliatory actions, the appellant failed to show by preponderant evidence that
his articulated claims provided OSC with a sufficient basis to pursue an
investigation.1
Based on our review of the appellant’s main jurisdictional pleading, we
conclude that he clearly alleged before OSC that he made protected disclosures
when, in November 2018, he reported to the Trust Fund Supervisor: (1) that
inmates had been allowed to hire other inmates in the commissary and handle
sensitive documents; and (2) that two Material Handler Supervisors had
improperly used replacement product samples to offset inventory shortages. The
appellant’s correspondence with OSC also refers to a disclosure involving “3 year
old bacon,” which was apparently being kept at the commissary (although the
appellant did not clearly inform OSC when or to whom he made that disclosure).
IAF, Tab 5 at 8, 10.IAF, Tab 5 at 13, 26-27. He further alleged before OSC that
the agency retaliated against him for those disclosures by: (1) denying his
request for a transfer; and (2) refusing or delaying authorization for outside
employment. Id. at 26-29. Hence, as the appellant points out on review, he
exhausted his remedies with respect to alleged disclosures and retaliatory actions
that were not mentioned in the closeout letter or the initial decision.
However, assuming without deciding that the appellant made nonfrivolous
allegations that one or more of his disclosures were protected under 5 U.S.C.
§ 2302(b)(8), he failed to nonfrivolously allege that his disclosures were a
contributing factor in the contested personnel actions. Under the statute
governing IRA appeals, an employee may demonstrate that a disclosure or
protected activity was a contributing factor in the contested personnel action
1 For example, the appellant notes on review that the documents he provided OSC
included the Standard Form 50 recording his August 18, 2019 reduction in grade.
Petition for Review File, Tab 1 at 6; see IAF, Tab 19 at 37. However, considering that
the form was surrounded by hundreds of other pages of disorganized documents, the
appellant did not clearly inform OSC that he was claiming the demotion as an alleged
retaliatory action. 4
through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or protected activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or protected activity was a contributing factor
in the personnel action. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 13.
The knowledge-timing test is only one way of establishing contributing factor,
and if an appellant fails to satisfy the knowledge-timing test, other evidence must
be considered, 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 responsible agency officials, and whether those
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army , 117 M.S.P.R. 480, ¶¶ 14-15 (2012).
Regarding the appellant’s request for a change of position, an appointment
or reassignment constitutes a “personnel action” for purposes of a whistleblowing
claim. See 5 U.S.C. § 2302(a)(2)(A)(i), (iv). However, the appellant has not
identified the responsible agency officials, alleged that they were aware of his
disclosures, or otherwise explained how a retaliatory motive may have played a
role in the agency’s decision. Thus, he has not made a nonfrivolous allegation
that his disclosures were a contributing factor in the agency’s failure to grant his
request. As for the appellant’s claim that the agency delayed his authorization for
outside employment, the agency’s actions in that regard do not constitute a
personnel action within the meaning of 5 U.S.C. § 2302(a)(2)(A).
In sum, the appellant failed to make a nonfrivolous allegation that his
disclosures, assuming they were protected, were a contributing factor in the
agency’s decision to take or fail to take, or threaten to take or fail to take,
a personnel action under 5 U.S.C. § 2302(a). To the extent the appellant raises
claims of race discrimination, the Board lacks jurisdiction to consider such claims
in the context of an IRA appeal. See Edwards v. Department of Labor , 2022
MSPB 9, ¶¶ 18-23 (clarifying that the Whistleblower Protection Enhancement Act5
of 2012 did not expand the scope of the Board’s IRA jurisdiction to include
claims relating to Title VII of the Civil Rights Act of 1964). Finally, there is no
law, rule, or regulation that would grant the Board authority to review the
appellant’s allegation that OSC misinterpreted his complaint. See Maddox v.
Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the
Board’s authority is limited to those matters over which it has been given
jurisdiction by law, rule or regulation). Because the appellant did not meet his
burden on the threshold issue of jurisdiction, it was unnecessary for the
administrative judge to conduct a hearing on the merits or require the agency to
submit a narrative response. Accordingly, we find no basis for further review of
the initial decision.
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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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.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. 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 | Danzey_Matthew_D_NY-1221-20-0118-W-1__FInal_Order.pdf | 2024-07-25 | MATTHEW D. DANZEY v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-1221-20-0118-W-1, July 25, 2024 | NY-1221-20-0118-W-1 | NP |
856 | https://www.mspb.gov/decisions/nonprecedential/Dawson_CoreySF-1221-20-0222-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COREY DAWSON,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-20-0222-W-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cameron Ames , Joint Base Lewis-McChord, Washington, for the appellant.
Benjamin Signer , 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
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his Individual Right of Action (IRA) appeal
alleging whistleblower retaliation. On review, the appellant argues that two
additional witnesses have come forth to support his claims of retaliation. Petition
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).
for Review (PFR) File, Tab 5 at 3-6. The appellant does not address the issue of
jurisdiction on 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. Except as expressly MODIFIED to
properly characterize the appellant’s claims in front of the Board, we AFFIRM
the initial decision.
BACKGROUND
The appellant worked as an Aircraft Engine Mechanic, WG-10, in the
agency’s Air Mobility Command at McChord Air Force Base in Pierce,
Washington. Initial Appeal File (IAF), Tab 7 at 17. On October 16, 2017, the
appellant filed a grievance through his union alleging hostile work environment
and harassment against his first-line supervisor. IAF, Tab 8 at 48-52. The
appellant’s grievance was resolved at the Step 1 level on or about November 14,
2017. Id. at 58-59. Over a year later, the agency posted a vacancy announcement
for an Equipment Specialist (Aircraft Propulsion), GS-11. Id. at 38-46. The
appellant applied for the position but was not selected. IAF, Tab 9 at 4, Tab 10 at
4-5. 2
On July 26, 2019, the appellant filed a complaint with the Office of Special
Counsel (OSC), alleging that the agency did not select him for the Equipment
Specialist position in retaliation for filing a grievance alleging a hostile work
environment. IAF, Tab 5 at 10. On November 15, 2019, OSC notified the
appellant that he had a right to file an IRA appeal with the Board. Id. at 10, 12.
In the letter, OSC stated that the appellant alleged that the agency “took adverse
actions against [him] because of [his] protected activities,” i.e., that the agency
did not select him for the Equipment Specialist position because he filed a
grievance “in or around January 2019.”2 Id. at 10. However, in his appeal with
the Board, the appellant claimed he was retaliated against for filing a grievance in
October 2017.3 Id. at 8. The appellant did not provide a copy of his OSC
complaint at any point below or on review.
On January 21, 2020, the appellant filed an IRA appeal with the Board,
alleging that the agency failed to select him for the Equipment Specialist position
in retaliation for filing a grievance in October 2017. IAF, Tab 1, Tab 5 at 8. The
administrative judge issued a Jurisdictional Order setting forth the necessary
standards to establish Board jurisdiction. IAF, Tab 3. After the appellant
responded to the order, the administrative judge issued an initial decision
dismissing the appellant’s appeal for lack of jurisdiction, finding that the
appellant failed to make a nonfrivolous allegation that he made a protected
disclosure and/or engaged in protected activity, and that he failed to
nonfrivolously allege that he had exhausted his administrative remedies with
regards to the October 2017 grievance. IAF, Tab 11, Initial Decision (ID).
2 In its letter, OSC references an email it sent to the appellant regarding his complaint.
IAF, Tab 10 at 8. The appellant did not provide a copy of OSC’s email.
3 The appellant stated that he was retaliated against for filing a grievance in November
2017; however, a copy of the grievance establishes that the grievance was filed in
October 2017, and resolved in November 2017. IAF, Tab 5 at 8, Tab 8 at 48-52, 58-59.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant exhausted his administrative remedies for the October 2017
grievance.
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. Here, the administrative judge determined that the appellant
failed to exhaust his administrative remedies regarding the October 2017
grievance because OSC stated that the appellant alleged that he was retaliated
against for a grievance filed “in or around January 2019.” ID at 6-7. However,
we find that the appellant did in fact exhaust with OSC his allegation that he filed
an October 2017 grievance. OSC stated that the appellant alleged in his
complaint that he was retaliated against for filing a grievance regarding a hostile
work environment. IAF, Tab 5 at 10. It is undisputed that the appellant filed a
grievance in October 2017 alleging a hostile work environment. IAF, Tab 8 at
48-52. Further, in his response to the jurisdiction order, the appellant alleged that
he was retaliated against for filing the October 2017 grievance. IAF, Tab 5 at 8.
There is no evidence in the record that the appellant filed any grievance other
than the October 2017 grievance. Under the circumstances, we find that the
appellant did exhaust his administrative remedies by asserting to OSC that he was
retaliated against for filing a grievance alleging hostile work environment in
October 2017, and we modify the initial decision accordingly. 4
The appellant did not allege that he made a protected disclosure pursuant to
5 U.S.C. § 2302(b)(8).
In the initial decision, the administrative judge analyzed whether the
appellant made a nonfrivolous allegation that he made a protected disclosure that
was a contributing factor in his nonselection. ID at 5-6. We find this analysis to
be unnecessary, as the appellant has only alleged that he engaged in a protected
activity under 5 U.S.C. § 2302(b)(9), i.e., filing a grievance. IAF, Tab 5 at 8, 10.
Thus, we find the administrative judge’s protected disclosure analysis
unnecessary and we modify the initial decision accordingly.
The administrative judge correctly determined that the appellant failed to
nonfrivolously allege that he engaged in a protected activity.
We agree with the administrative judge’s determination that the appellant
failed to nonfrivolously allege that his grievance was a protected activity. ID
at 6-8. The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes a nonfrivolous
allegation 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); 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. Graves v. Department of Veterans
Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). Reprisal for exercising a grievance right,
such as exercised by the appellant in this appeal, is a prohibited personnel
practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8). Compare
5 U.S.C. § 2302(b)(9)(A), with 5 U.S.C. § 2302(b)(8); Mudd v. Department of
Veterans Affairs , 120 M.S.P.R. 365, ¶ 6. The Board only has jurisdiction over
claims of reprisal for a grievance arising under 5 U.S.C. § 2302(b)(9)(A)(i),
which prohibits retaliation for exercising any appeal, complaint, or grievance
right relating to whistleblowing, i.e., retaliation for seeking to remedy a violation
of 5 U.S.C. § 2302(b)(8). Young v. Merit Systems Protection Board , 961 F.3d
1323, 1329 (Fed. Cir. 2020); see Mudd, 120 M.S.P.R. 365, ¶ 7 (explaining that5
the Board does not have jurisdiction over the appellant’s claims of retaliation for
a grievance that did not concern remedying a violation of 5 U.S.C. § 2302(b)(8)).
The appellant did not allege retaliation for any protected disclosures in his
October 2017 grievance, and thus the grievance did not seek to remedy a
violation of 5 U.S.C. § 2302(b)(8). IAF, Tab 8 at 48-52. Therefore, the October
2017 grievance is not a protected activity, and the Board does not have
jurisdiction over the appellant’s claim of retaliation. Thus, the appellant has not
established that his grievance was a protected activity, nor has he established that
his grievance constituted a protected disclosure. Accordingly, we agree with the
administrative judge’s determination to dismiss the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Dawson_CoreySF-1221-20-0222-W-1_Final_Order.pdf | 2024-07-25 | COREY DAWSON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-20-0222-W-1, July 25, 2024 | SF-1221-20-0222-W-1 | NP |
857 | https://www.mspb.gov/decisions/nonprecedential/Huynh_PhucDA-0752-23-0228-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHUC T. HUYNH,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-23-0228-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Curtis Mitchell, Jr., Midwest City, Oklahoma, for the appellant.
Petria Pennington , Esquire, Tinker Air Force Base, Oklahoma, 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, among other things, that the agency
committed prohibited personnel practices, discriminated against him because 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 disability and retaliated against him for filing an equal employment
opportunity complaint and using leave protected by the Family and Medical
Leave Act of 1993. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 As the administrative judge advised, if the appellant contends that his termination
breached the parties’ settlement agreement, then, pursuant to 5 C.F.R. § 1201.182, he
should file a petition for enforcement with the regional office. Initial Appeal File,
Tab 10, Initial Decision at 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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Huynh_PhucDA-0752-23-0228-I-1_Final_Order.pdf | 2024-07-25 | PHUC T. HUYNH v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-23-0228-I-1, July 25, 2024 | DA-0752-23-0228-I-1 | NP |
858 | https://www.mspb.gov/decisions/nonprecedential/Pereira_Albert_D_DA-1221-18-0061-W-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALBERT D. PEREIRA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-1221-18-0061-W-3
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert D. Pereira , New Orleans, Louisiana, pro se.
Treva Grandpre-Cadres , Esquire, New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal as moot following his retirement.
On petition for review, the appellant alleges the following: (1) the agency
engaged in ex parte communications, violated his due process rights, “abused” its
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
equal employment opportunity (EEO) program, and committed “[f]raud upon the
court”; (2) his appeal “has evolved into criminal acts”; and (3) the administrative
judge should “be removed from this case for cause.” Petition for Review (PFR)
File, Tab 1 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant makes a series of statements involving ex parte
communications, his due process rights, the agency’s abuse of its EEO program,
unspecified “criminal acts,” and an undefined “[f]raud upon the court.” PFR File,
Tab 1 at 4-9. These vague statements and unsubstantiated allegations do not
warrant a different outcome. See 5 C.F.R. § 1201.115(a)(2) (stating that a
petitioner who alleges that the administrative judge made erroneous findings of
material fact must explain why the challenged factual determination is incorrect
and identify specific evidence in the record that demonstrates the error).
Moreover, none of these assertions are relevant to issue of mootness; thus, they
do not provide a basis to disturb the initial decision.
The appellant asserts that the administrative judge should be “removed
from this case for cause.” PFR File, Tab 1 at 7. We interpret this assertion as an2
allegation of bias on the part of the administrative judge. The Board has
consistently held that, in making a claim of bias against an administrative judge,
the appellant 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) (citing In re King, 1 M.S.P.R. 146, 151
(1979)). This presumption can be overcome only by a substantial showing of
personal bias. Williams v. U.S. Postal Service , 87 M.S.P.R. 313, ¶ 12 (2000).
Here, insofar as the record is devoid of any indication of personal bias, the
appellant’s allegation is unavailing.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Pereira_Albert_D_DA-1221-18-0061-W-3__Final_Order.pdf | 2024-07-25 | ALBERT D. PEREIRA v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-18-0061-W-3, July 25, 2024 | DA-1221-18-0061-W-3 | NP |
859 | https://www.mspb.gov/decisions/nonprecedential/Hamann_Daniel_W_DE-3443-23-0189-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL W. HAMANN,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-3443-23-0189-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel W. Hamann , Lakewood, Colorado, pro se.
Pernell Telfort , Esquire, Washington, District of Columbia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his letter of reprimand for lack of jurisdiction. On
petition for review, the appellant argues that the agency’s letter of reprimand
violates merit systems principles because lying and deception are the antithesis of
merit. 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
2 To the extent that the administrative judge’s show cause order did not sufficiently
advise the appellant of the necessary jurisdictional elements, the administrative judge
set forth the jurisdictional elements in the initial decision, and therefore, the appellant
was on notice of what he must do to establish jurisdiction on review. Initial Appeal
File (IAF), Tab 7, Initial Decision at 2 n.1. The appellant did not present any allegation
on review that would constitute a nonfrivolous allegation of jurisdiction, and therefore,
no further adjudication is necessary. See Masselli v. Department of the Army ,
105 M.S.P.R. 79, ¶ 7 (2007) (finding that failure to provide jurisdictional notice will
not require further adjudication when the appellant receives the necessary information
in the initial decision, but on petition for review does not make nonfrivolous allegation
of jurisdiction).
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hamann_Daniel_W_DE-3443-23-0189-I-1_Final_Order.pdf | 2024-07-25 | DANIEL W. HAMANN v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-3443-23-0189-I-1, July 25, 2024 | DE-3443-23-0189-I-1 | NP |
860 | https://www.mspb.gov/decisions/nonprecedential/McCormack_Matthew_B_PH-0752-23-0046-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW BRYAN MCCORMACK,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-23-0046-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Bryan McCormack , Eliot, Maine, pro se.
Scott William Flood , 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
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension based on the suspension of his access to
classified information. On petition for review,2 the appellant alleges that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 With his petition for review, the appellant submits his January 31, 2023 request to
reschedule the hearing and the February 1, 2023 order denying his request to postpone
administrative judge made rulings and findings that were biased against him, and
the agency did not provide him a binder with its evidence, which disadvantaged
him at the hearing. 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).
the hearing. Petition for Review (PFR) File, Tab 1 at 3-10. These documents are part
of the record below, and they are not new. Initial Appeal File, Tabs 13, 15; see Meier
v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980) (stating that evidence that is
already part of the record is not new). With its response to the petition for review, the
agency submits emails sent to the appellant offering a binder prior to the hearing and
documents showing that attorneys represented the appellant in other matters. PFR File,
Tab 3 at 23-24, 26-27. Because we conclude the appellant’s arguments provide no basis
for granting his petition for review, we need not determine whether the agency’s
documents constitute new and material evidence. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (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.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 | McCormack_Matthew_B_PH-0752-23-0046-I-1__Final_Order.pdf | 2024-07-25 | MATTHEW BRYAN MCCORMACK v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-23-0046-I-1, July 25, 2024 | PH-0752-23-0046-I-1 | NP |
861 | https://www.mspb.gov/decisions/nonprecedential/Jones_Kamilah_A_SF-0752-20-0202-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAMILAH A. JONES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-20-0202-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kamilah A. Jones , Smyrna, Georgia, pro se.
Jessica Choi , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of Board
jurisdiction. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a Social Worker with the Veterans Health
Administration. Initial Appeal File (IAF), Tab 5 at 25. On January 20, 2019, she
was selected for a lateral transfer to Los Angeles, California. Id. at 33. On April
22, 2019, the appellant submitted her resignation from the position, effective
April 30, 2019. Id. at 25, 30.
The appellant filed an Equal Employment Opportunity (EEO) complaint,
which the agency accepted as a mixed case. Id. at 20-23. She subsequently filed
the instant appeal, alleging that she was forced to resign because of unlawful
discrimination and retaliation. IAF, Tab 1 at 3. As described by the appellant,
she felt forced to resign due to a hostile work environment. Specifically, she
explained disrespectful behavior from her immediate supervisor, inadequate work
equipment, and a lack of training at her new position. IAF, Tab 9 at 7-25.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction without holding the appellant’s requested hearing. IAF,
Tab 17, Initial Decision (ID) at 1, Tab 1 at 2. She specifically found that the2
appellant failed to nonfrivolously allege working conditions so intolerable that a
reasonable person would have felt compelled to resign. ID at 6-8.
The appellant has filed a petition for review, repeating many of her
arguments raised below. Petition for Review (PFR) File, Tab 1 at 4-6. She also
argues that she was not awarded a step increase she deserved when she was
transferred to Los Angeles and alleges violations of merit system principles. Id.
at 5. The agency has responded, and the appellant has replied to its response.2
PFR File, Tabs 3, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge here found that the appellant’s allegations, even if
true, were insufficient to amount to a nonfrivolous allegation that her resignation
was involuntary. ID at 8. We agree.
An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation is
tantamount to a removal, however, and is therefore subject to the Board’s
jurisdiction. Id. An appellant is entitled to a hearing on the issue of Board
jurisdiction over an alleged involuntary resignation only if she makes a
nonfrivolous allegation casting doubt on the presumption of voluntariness.
Gibeault v. Department of the Treasury , 114 M.S.P.R. 664, ¶ 6 (2010).
Coercive involuntariness is a narrow doctrine. Brown v. U.S. Postal
Service, 115 M.S.P.R. 609, ¶ 10 (citation omitted), aff’d per curiam ,
469 F. App’x 852 (Fed. Cir. 2011). To establish involuntariness on the basis of
coercion, an employee must show that the agency effectively imposed the terms
of her resignation, she had no realistic alternative but to resign, and her
2 In the appellant’s reply, she suggested that she wanted to withdraw her petition for
review. PFR File, Tab 4 at 3. The Acting Clerk of the Board ordered the appellant to
confirm whether she intended to withdraw her petition for review. PFR File, Tab 5 at 2.
The appellant did not respond within the response period, and we therefore now will
address her petition for review as filed. 3
resignation was the result of improper acts by the agency. Vitale, 107 M.S.P.R.
501, ¶ 19. The touchstone of the voluntariness analysis is whether, considering
the totality of the circumstances, factors operated on the employee’s
decision-making process that deprived her of freedom of choice. Id.
The appellant here alleges that her supervisor was disrespectful and hostile
towards her, including by having addressed the appellant by her first name and by
having refused to call her “Dr. Jones.” PFR File, Tab 1 at 5. She additionally
alleges that her supervisor would not respond to her emails, and treated other
employees more favorably. Id. She described her supervisor as “hands off,”
which she perceived as hostile and unwilling to help. Id.; IAF, Tab 9 at 7-8.
Despite her requests, the appellant alleges she received no training and additional
support. PFR File, Tab 1 at 5-6. She asserts that the agency had enough money
to award her a step increase, but her request for one was denied both by the
Atlanta office from which she transferred, as well as by her supervisor in Los
Angeles.3 Id.
When alleging involuntary resignation due to harassment and a hostile
work environment, the appellant must demonstrate that the employer engaged in a
course of action that made working conditions so difficult or unpleasant that a
reasonable person in that employee’s position would have felt compelled to
resign. Vitale, 107 M.S.P.R. 501, ¶ 20. An employee is not guaranteed a
stress-free working environment. Brown, 115 M.S.P.R. 609, ¶ 15. A feeling of
being unfairly criticized and difficult or unpleasant working conditions are
3 The appellant argues that the initial decision erroneously states that she was
“reassigned” to Los Angeles. PFR File, Tab 1 at 4; ID at 2. She argues that she was
selected for the position, which involved different duties than her previous job in
Atlanta. PFR File, Tab 1 at 4. We discern no error in the description of the change in
positions as a reassignment. A Standard Form 50 contained in the record and reflecting
this action describes it as such. IAF, Tab 5 at 33. In any event, because the nature of
this transfer is not relevant to the jurisdictional issue, any alleged error does not warrant
reversal of the initial decision. Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).4
generally not so intolerable as to compel a reasonable person to resign. Id. The
appellant also alleges her supervisor’s conduct violated merit system principles
and amounted to reprisal and discrimination. PFR File, Tab 1 at 6; e.g., IAF,
Tab 9 at 4-5, 19. The Board addresses allegations of discrimination and reprisal
in connection with an alleged involuntary resignation only insofar as those
allegations relate to the issue of voluntariness. Brown, 115 M.S.P.R. 609, ¶ 10.
The appellant’s claims here, even if true, are insufficient to demonstrate
that her resignation was involuntary. See Searcy v. Department of Commerce ,
114 M.S.P.R. 281, ¶ 13 (2010) (determining that a reasonable person in an
appellant’s position would not have resigned when his supervisor denied his
request for advanced leave, spoke to him in a disrespectful way, and did not
provide him any assistance with his work assignments, and a higher-level official
refused to grant him an education waiver that would have allowed him to apply
for certain vacancies). We therefore agree with the administrative judge that the
appellant has failed to nonfrivolously allege that the working conditions were so
difficult or unpleasant that a reasonable person would have felt compelled to
resign.
Because we lack jurisdiction over the appellant’s alleged involuntary
resignation, we also lack jurisdiction over her discrimination and prohibited
personnel practices claims. See Fahrenbacher v. Department of Veterans Affairs ,
89 M.S.P.R. 260, ¶ 9 (2001) (explaining that the Board could only review an
appellant’s claims of discrimination in employment under title VII standards if he
established jurisdiction over his alleged involuntary retirement); Wren v.
Department of the Army , 2 M.S.P.R. 1, 2 (1980) (observing 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). Accordingly,5
we affirm the initial decision dismissing her appeal for lack of Board
jurisdiction.4
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
4 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 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).
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Jones_Kamilah_A_SF-0752-20-0202-I-1__Final_Order.pdf | 2024-07-25 | KAMILAH A. JONES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-20-0202-I-1, July 25, 2024 | SF-0752-20-0202-I-1 | NP |
862 | https://www.mspb.gov/decisions/nonprecedential/Wallace_JhamieSF-844E-20-0365-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JHAMIE WALLACE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0365-I-1
DATE: July 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jhamie Wallace , Peoria, Arizona, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of the Office of Personnel
Management (OPM) reconsideration decision denying her application for
disability retirement under the Federal Employees’ Retirement System (FERS).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
On April 9, 2020, the appellant filed an appeal with the Board contesting
her ineligibility for disability retirement under FERS. Initial Appeal File (IAF),
Tab 1 at 3. The appellant indicated on her initial appeal form that she had
received OPM’s final decision on March 31, 2020; however, she did not provide a
copy of the decision. Id. The appellant requested a hearing on the matter. Id.
at 2.
The administrative judge issued an acknowledgment order wherein he
ordered the agency to provide all documents material to the appeal. IAF, Tab 2
at 6-7, 9. The administrative judge explained that failure to comport with his
order may result in sanctions pursuant to 5 C.F.R. § 1201.43. Id. at 1. The
administrative judge also issued a jurisdictional order explaining that the Board’s
jurisdiction over retirement matters under FERS does not vest until OPM has
issued a final decision, IAF, Tab 3 at 1, and he ordered the appellant to file
evidence and argument as to why the Board has jurisdiction over the matter, id.
at 1-2. The administrative judge also provided the agency an opportunity to
respond to his order. Id. Neither party responded.
Thereafter, the administrative judge issued an order explaining that the
agency had failed to respond to his initial acknowledgment order, IAF, Tab 4 at 1,
and he ordered the agency to file a response within 7 days, id. The agency did
not respond; instead, 14 days later, it filed a motion for a 30-day extension. IAF,
Tab 5 at 4-6. The administrative judge denied this request, IAF, Tab 6 at 1-2, and
he again ordered the agency to file a response to his acknowledgment order, id.
at 2; however, the agency failed to respond. 2
Without holding the appellant’s hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID) at 1-3. In so doing, he explained that, apart from a “single,
conclusory allegation,” the appellant had failed to present any evidence or
argument that she had received a final decision from the agency. ID at 2.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. OPM has not filed a response. In her petition for review, the
appellant does not provide any argument; instead, she provides two copies of
OPM’s March 31, 2020 reconsideration decision denying her application for
disability retirement under FERS. Id. at 4-15.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). The Board generally has jurisdiction over the agency’s
determinations affecting an appellant’s rights or interests under the retirement
system only after OPM has issued a final decision, that is, a reconsideration
decision, on the matter. See McNeese v. Office of Personnel Management ,
61 M.S.P.R. 70, 73 -74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Board
regulations require that any such appeal therefrom be filed no later than 30 days
after the effective date, if any, of the action being appealed, or 30 days after the
date of receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b).
For the first time on review, the appellant provides a March 31, 2020 final
decision letter from OPM. PFR File, Tab 1 at 4-15. In this letter, OPM upheld
its initial decision to disallow the appellant’s disability retirement application
under FERS. Id. at 4, 10. The Board generally will not consider evidence3
submitted for the first time on review absent a showing that it was unavailable
before the record closed despite the party’s due diligence. Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the
appellant provides no explanation as to why she failed to submit this decision to
the administrative judge.
Nevertheless, the Board has recognized that appeals involving an
appellant’s entitlement to retirement benefits are fundamentally different from
other types of appeals within its jurisdiction. Matson v. Office of Personnel
Management, 105 M.S.P.R. 547, ¶ 16 (2007); Edney v. Office of Personnel
Management, 79 M.S.P.R. 60, ¶ 6 (1998) (explaining that, unlike the competing
interests of agency management and employee rights involved in a disciplinary
appeal, there is only one primary interest involved in a retirement appeal, that of
the applicant’s entitlement under law to a benefit). Here, the documents
submitted on review suggest that the appellant timely appealed OPM’s final
decision pertaining to her eligibility for disability retirement under FERS to the
Board. IAF, Tab 1; PFR File, Tab 1 at 4, 10; 5 C.F.R. § 1201.22(b) . Despite her
timely appeal, OPM failed to comply with multiple orders to submit documents
material to the matter. IAF, Tab 2 at 6-7, 9, Tab 4 at 1, Tab 6 at 2. Moreover, a s
noted, OPM did not respond to the appellant’s petition for review. In these
circumstances, we find it appropriate to remand this appeal for further
adjudication based on the evidence provided with the appellant’s petition for
review.2 See 5 C.F.R. § 1201.115(e).
2 OPM’s reconsideration decision contains a slight naming discrepancy, i.e., the
decision lists the surname “WALLACE HANNA” in lieu of merely “Wallace.”
Compare PFR File, Tab 1 at 4, 10, with IAF, Tab 1 at 1. The administrative judge
should resolve this discrepancy on remand. 4
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Wallace_JhamieSF-844E-20-0365-I-1__Remand_Order.pdf | 2024-07-25 | JHAMIE WALLACE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0365-I-1, July 25, 2024 | SF-844E-20-0365-I-1 | NP |
863 | https://www.mspb.gov/decisions/nonprecedential/Grutter_Gregory_M_PH-844E-20-0012-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY M. GRUTTER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-844E-20-0012-I-1
DATE: July 25, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, 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*
*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 reconsideration decision issued by the Office of Personnel
Management (OPM) finding the appellant’s request for reconsideration untimely
filed. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was separated from his Federal Air Marshal position with the
Transportation Security Administration in August 2014 because of his medical
inability to perform. Initial Appeal File (IAF), Tab 8 at 6, 44. In September
2015, the appellant applied for disability retirement benefits under the Federal
Employees Retirement System (FERS). Id. at 62. On April 26, 2016, OPM
issued an initial decision dismissing the appellant’s application and informing
him that his application was incomplete and lacked the necessary medical
evidence and supporting documentation. Id. at 28-29. The initial decision
informed the appellant of the process by which he could request reconsideration.
Id. at 28. The appellant responded with the necessary documentation. Id.
at 22-26. On June 26, 2018, OPM rescinded its initial decision, notified the
appellant that his disability retirement application appeared to be untimely filed,
and set forth the requirements for waiver of the time limit. Id. at 19-20. 2
On October 12, 2018, OPM issued an initial decision dismissing the
appellant’s application as untimely based on a finding that no information had
been received showing that the appellant was mentally incompetent to file a
timely application. Id. at 16-17. OPM’s initial decision informed the appellant
of his right to request reconsideration and of the 30-day deadline in which he
must submit such a request. Id. at 17.
On July 22, 2019, OPM notified the appellant that it did not receive a
request for reconsideration and informed him of the criteria for waiver of the
deadline for an untimely request for reconsideration. Id. at 13. OPM further
notified the appellant that his request for waiver of the time limit must be
submitted within 30 days. Id. The appellant, through counsel, responded to
OPM’s letter. Id. at 6-7. He argued that he did request reconsideration, attached
documents purporting to prove this, and, alternatively, requested waiver of the
30-day deadline based on his severe mental health issues. Id. The documents
attached included an October 1, 2018 letter from the appellant to OPM and a
September 10, 2018 letter from the Director of the Vet Center at the Department
of Veterans Affairs (VA), where the appellant was treated for Post-Traumatic
Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), both of which predated
OPM’s reissued initial decision. Id. at 11-12. OPM subsequently issued a final
decision, finding that the appellant failed to timely request reconsideration or
present sufficient evidence that he was unable to timely request reconsideration
within the time limit. Id. at 4-5.
The appellant subsequently appealed OPM’s final decision to the Board,
arguing that his mental health condition prevented him from timely filing his
disability retirement application. IAF, Tab 1 at 4. The administrative judge held
a hearing at which the appellant testified. IAF, Tab 14, Hearing Compact Disc
(HCD). The administrative judge provided the appellant an opportunity to
subpoena the remaining witnesses and complete the hearing. IAF, Tab 15. At the
request of the appellant, the administrative judge issued a subpoena ordering the3
Director of the Vet Center to appear via telephone to testify in the appellant’s
case. IAF, Tab 19.
After the appellant served the Director of the Vet Center, the VA restricted
this individual from testifying and refused to comply with the subpoena. IAF,
Tab 23 at 12-13. The appellant filed a motion to enforce the subpoena. Id.
at 4-8. The administrative judge denied the appellant’s motion to enforce the
subpoena, finding that the witness was only a licensed clinical worker rather than
a psychiatrist, and thus could not meaningfully testify about the proffered issues,
including providing expert testimony regarding the appellant’s PTSD diagnosis
and whether he was mentally incompetent during the relevant filing period. IAF,
Tab 23 at 20-21, Tab 24 at 1. The administrative judge further found that the
witness already provided a letter describing the appellant’s condition, which
appeared to provide all the information she could realistically testify to on the
witness stand. IAF, Tab 24 at 1. The administrative judge further noted that the
appellant had already provided testimony about his condition, and specifically
about how his mental health conditions allegedly prevented him from timely
filing a request for reconsideration. Id.
The administrative judge subsequently issued an initial decision affirming
OPM’s reconsideration decision and finding the appellant not entitled to a waiver
of the deadline to request reconsideration. IAF, Tab 27, Initial Decision (ID)
at 1. He found that the appellant received a timely notice of his right to seek
reconsideration from the October 12, 2018 initial decision. ID at 4-5. He further
found that the appellant’s mental condition was insufficient to justify the 9-month
delay in requesting reconsideration. ID at 5. In so holding, the administrative
judge noted that the appellant had “adjusted” to his mental condition by
automatically sending OPM documents to his counsel. ID at 5-6. Because he
found that the appellant failed to demonstrate entitlement to a waiver of the time
limit, the administrative judge found that he could not consider the merits of the4
appellant’s original disability retirement application or whether his original
application was timely. ID at 6.
The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. He asserts that the administrative judge failed to take into
account his mental disabilities and argues that he is eligible for an extension of
the time limit. Id. at 5-8. He further argues that the administrative judge erred in
denying his motion to enforce the subpoena of the Director of the Vet Center. Id.
at 5, 9-10. He argues that OPM acted unreasonably and abused its discretion in
refusing to extend the time limit and dismissing his request for reconsideration as
untimely. Id. at 8-10. Finally, he asserts that his original disability application
was timely filed and argues the merits of his disability application. Id. at 9-10.
The agency has not responded to his petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge’s refusal to seek enforcement of the subpoena did not
affect the outcome of this appeal.
The appellant argues that the administrative judge erred in denying his
motion to enforce the subpoena against the Director of the Vet Center. Id.
at 9-10. The administrative judge denied the appellant’s motion, finding that the
Director’s letter, which was in the record, provided all the information she could
realistically provide on the witness stand. IAF, Tab 24 at 1.
If a person who has been served with a Board subpoena fails or refuses to
comply with its terms, the party seeking compliance may file a written motion for
enforcement. 5 C.F.R. § 1201.85(a). The Board, in accordance with 5 U.S.C.
§ 1204(c), may then ask the appropriate United States district court to enforce the
subpoena. Id. The administrative judge has wide discretion to control the
proceedings before him, including the authority to exclude testimony he believes
would be irrelevant, immaterial, or repetitious. Brownscombe v. Office of
Personnel Management , 37 M.S.P.R. 382, 386 (1988), aff’d, 871 F.2d 1097 (Fed.
Cir. 1989) (Table). The Board will not reverse an administrative judge’s rulings5
on discovery matters absent an abuse of discretion. Wagner v. Environmental
Protection Agency , 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.
1993) (Table). Regardless of whether the administrative judge abused his
discretion in declining to seek enforcement of the subpoena in district court, we
find that any such error was harmless.
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). The appellant here did not establish that
the testimony of the Director would add anything to the information in the record.
See Brownscombe , 37 M.S.P.R. at 386. Rather, the appellant merely repeats the
information contained in the Director’s statement in the record, explaining
various effects of his mental condition. PFR File, Tab 1 at 7; IAF, Tab 8 at 12.
As set forth below, the information in the record is insufficient to establish that
his medical conditions prevented him from timely requesting reconsideration.
Indeed, the administrative judge considered the appellant’s medical conditions,
but nonetheless found them insufficient to justify the 9-month delay in requesting
reconsideration. ID at 5-6. Moreover, given that the Director was a Licensed
Clinical Social Worker, not a psychiatrist, it does not appear that she diagnosed
the appellant with PTSD or TBI; rather, her letter merely stated that she provided
treatment to the appellant for those conditions and generally explained some of
the potential impacts of PTSD and TBI. IAF, Tab 8 at 12, Tab 23 at 20-21. Thus,
the appellant did not show how this witness’s absence impaired the proceedings
or his rights. Brownscombe, 37 M.S.P.R. at 386; see also Panter , 22 M.S.P.R.
at 282 (finding 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 correctly held that the appellant’s request for
reconsideration was untimely.
The appellant, in requesting reconsideration to OPM, argued that he timely
requested reconsideration of the initial decision. IAF, Tab 8 at 6-7. The6
administrative judge held that the appellant’s documents, which predated OPM’s
initial decision, were in response to OPM’s June 26, 2018 letter, and not in
response to the initial decision. ID at 6. Under FERS, a request for
reconsideration must be received by OPM within 30 calendar days from the date
of the initial decision. 5 C.F.R. § 841.306(d)(1). The appellant does not
challenge this finding on review, and we see no reason to disturb it. Indeed, the
letters purportedly requesting reconsideration, dated October 1 and September 10,
2018, predated OPM’s October 12, 2018 initial decision. IAF, Tab 8 at 14-17.
The administrative judge correctly held that the appellant failed to show that he is
eligible for a waiver of the 30-day time limit.
The administrative judge found that the appellant was timely notified of his
right to seek reconsideration and of the 30-day time limit. ID at 4-5. The parties
do not challenge this finding on review, and we decline to disturb it. The
appellant on review argues that his medical conditions rendered him unable to
comply with the time limit, and thus he was prevented by circumstances beyond
his control from timely requesting reconsideration. PFR File, Tab 1 at 6. The
administrative judge found that the appellant’s medical condition was insufficient
to demonstrate that he was prevented by circumstances beyond his control from
timely requesting reconsideration. ID at 5-6. We agree.
Under FERS, OPM’s regulations provide that OPM may extend the time
limit for requesting reconsideration when the individual shows either that: (1) he
was not notified of the time limit and was not otherwise aware of it; or (2) he was
prevented by circumstances beyond his control from making the request within
the time limit. Kent v. Office of Personnel Management , 123 M.S.P.R. 103, ¶ 8
(2015); 5 C.F.R. § 841.306(d)(2). If an appellant shows that he qualified for an
extension of the time limit under OPM’s regulations, the Board then will consider
whether OPM acted unreasonably or abused its discretion in refusing to extend
the time limit and dismissing his request for reconsideration as untimely filed.
Kent, 123 M.S.P.R. 103, ¶ 8. If, however, the appellant does not first show that7
he qualified for an extension under OPM’s regulatory criteria, the Board will not
reach the issue of whether OPM was unreasonable or abused its discretion in
denying his untimely request for reconsideration. Id. The good cause standard
the Board would apply to cases untimely filed with the Board is a more lenient
standard than the narrower factual criteria under 5 C.F.R. § 841.306(d)(2). Id.
The administrative judge here considered the appellant’s medical
conditions, including the statement provided by the Director of the Vet Center,
but found that they failed to demonstrate circumstances beyond his control or
justify the 9-month delay. ID at 5-6. The Board has held that medical problems
which merely interfere with an appellant’s ability to timely request
reconsideration fall short of a showing that an appellant was “prevented” from
doing so. See Meister v. Office of Personnel Management , 52 M.S.P.R. 508,
515-16 (1992) (finding the appellant’s bronchitis and back problems, which
rendered her “unable to take a more active part” in requesting reconsideration,
was insufficient to prove she was medically prevented from requesting
reconsideration). By contrast, the Board has found that an appellant who suffered
from fibromyalgia, migraines, and was bedridden for days and weeks at a time
demonstrated that she was prevented by circumstances beyond her control from
timely requesting reconsideration. Williams v. Office of Personnel Management ,
100 M.S.P.R. 190, ¶¶ 4, 8-10 (2005). The appellant in Williams additionally
made several attempts to call OPM and seek an extension of the filing period due
to her incapacitating medical conditions, and her request for reconsideration was
filed just one day after the 30-day deadline. Id., ¶¶ 4, 9.
The appellant here presented evidence that he suffered from PTSD and
TBI, which “can result in distraction in concentration, forgetfulness, and memory
loss.” IAF, Tab 8 at 15. As stated in the letter from the Director of the Vet
Center, his condition “can often result in missed appointments and deadlines
along with forgetting daily responsibilities.” Id. Additionally, the appellant
testified that he had difficulty completing tasks and staying focused. HCD8
at 13:22 (testimony of the appellant). He further testified that he had difficulty
remembering things, including appointments. HCD at 16:15 (testimony of the
appellant). Specifically regarding his correspondence with OPM, the appellant
testified that it was overwhelming, he could not understand the verbiage, and he
began forwarding all OPM correspondence to his counsel. HCD at 17:55
(testimony of the appellant).
We find that the appellant has failed to meet his burden of proving that he
was prevented by circumstances beyond his control from requesting
reconsideration during the time limit. There is no evidence that the appellant
contacted OPM prior to the filing deadline, and his 9-month delay in filing is
significantly longer than the 1-day delay in Williams. Moreover, the record
reflects that the appellant was able to request reconsideration of OPM’s first
initial decision, despite his medical conditions. IAF, Tab 8 at 25-33. Given that
his system of forwarding OPM correspondence to his counsel allowed him to
request reconsideration of a different initial decision, and to generally correspond
and cooperate with OPM throughout the process, we find that his medical
conditions merely interfered with his ability to file a request for reconsideration,
as opposed to preventing him from doing so. See Meister, 52 M.S.P.R. at 515-16.
To the extent the appellant argues that OPM’s July 22, 2019 letter was a
waiver of the time limit, we are unpersuaded. PFR File, Tab 1 at 4-5. Therein,
OPM merely informed the appellant that it had not received a request for
reconsideration, and provided him an opportunity to meet his burden of proving
entitlement to a waiver of the deadline. IAF, Tab 8 at 13. This letter in no way
suggested that it was extending his deadline to file a request for reconsideration
but rather provided a 30-day deadline to request a waiver of the original time
limit. Id.
The appellant additionally argues that OPM acted unreasonably or abused
its discretion in refusing to extend the time limit. PFR File, Tab 1 at 8-9. He
also argues the merits of his original disability retirement application and asserts9
that his original application was timely filed. Id. The administrative judge held
that, because the appellant failed to show that he was entitled to a waiver of the
time limit, the Board cannot consider such claims. ID at 6. We agree. See Kent,
123 M.S.P.R. 103, ¶ 8 (finding that if an appellant does not first show that he
qualified for an extension of the time limit, the Board will not reach the issue of
whether OPM was unreasonable or abused its discretion in denying his untimely
request for reconsideration).
Accordingly, we deny the appellant’s petition for review and affirm the
initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you11
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: 12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If 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. 13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Grutter_Gregory_M_PH-844E-20-0012-I-1__Final_Order.pdf | 2024-07-25 | GREGORY M. GRUTTER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-20-0012-I-1, July 25, 2024 | PH-844E-20-0012-I-1 | NP |
864 | https://www.mspb.gov/decisions/nonprecedential/McKinley_NitaSF-0752-20-0041-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NITA MCKINLEY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-20-0041-I-2
DATE: July 25, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Matthew C. Miller , Baltimore, Maryland, 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
sustained her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant was formerly employed by the agency as a GS-08 Contact
Representative/Customer Service Representative (Bilingual) with the Office of
the Regional Commissioner in Inglewood, California. McKinley v. Social
Security Administration , MSPB Docket No. SF-0752-20-0041-I-1, Initial Appeal
File (IAF), Tab 5 at 265. On August 21, 2009, she sustained an occupational
injury. IAF, Tab 6 at 67. Thereafter, she suffered a second occupational injury
on July 1, 2013. Id. at 58; IAF, Tab 5 at 229. Such injuries appear related to her
neck, shoulders, elbows, wrists, and finger. IAF, Tab 6 at 7, 58, 67; McKinley v.
Social Security Administration , MSPB Docket No. SF-0752-20-0041-I-2, Refiled
Appeal File (RAF), Hearing Transcript at 121-24 (testimony of the appellant).
From August 13, 2014, to October 4, 2015, the agency provided the appellant
with a fixed shift of 4 hours of work per day to accommodate her medical
restrictions, which as of February 16, 2015, included no reaching above the
shoulders, intermittent neck motions up to 50% of the shift, and taking a
15-minute break every 30 minutes. IAF, Tab 5 at 229, 232. On October 5, 2015,
the agency notified the appellant that it could no longer accommodate her
restrictions due to the workload and needs of the office and that it was placing her
on workers’ compensation leave without pay. Id. at 232. The appellant did not
return to work after October 5, 2015, but rather received benefits through the
Office of Workers’ Compensation Programs (OWCP). Id. at 34, 42.
By letter dated February 9, 2018, the agency notified the appellant that it
may take adverse action against her based on her excessive absences unless she
became available for duty. Id. at 224. The agency noted that the appellant had
been absent 100% of the time since September 1, 2017, and her medical
documentation dated November 27, 2017, did not indicate that a significant2
improvement of her condition was expected in the foreseeable future. Id. On
March 15, 2018, the agency was notified that OWCP intended to refer the
appellant out for a referee exam by a third physician because it was unable to give
weight to either of the appellant’s prior medical reports from Dr. X.Y. or
Dr. G.H. Id. at 230. Prior medical documentation from Dr. X.Y. dated March 30,
2017, indicated that the appellant had permanent restrictions, which included no
reaching above her shoulders, intermittent neck motions up to 50% of her shift,
and taking a 15-minute break every 30 minutes. Id. at 235. The March 30, 2017
medical documentation also indicated that the appellant could perform the
following tasks occasionally up to 25% of her shift: keyboard/mouse use,
repetitive hand motions, and gripping/grasping. Id. However, medical
documentation dated July 12, 2017, from Dr. G.H., who had provided a second
opinion, indicated that the appellant was able to work 8 hours per day with a
15-minute break every 2 hours and with restrictions including, among other
things, no reaching above the shoulders and up to 4 hours of repetitive wrist or
elbow movements. IAF, Tab 6 at 59, 61. As a result, OWCP notified the agency
that both physicians had provided work restrictions, and if the agency could
accommodate the more restrictive limitations provided by Dr. X.Y., it could offer
the appellant a position instead of the appellant remaining on leave receiving full
compensation benefits while they awaited the referee exam. IAF, Tab 5 at 230.
On December 4, 2018, the agency proposed the appellant’s removal based
on one charge of excessive absence. Id. at 240. The appellant did not respond to
the proposal notice, and the agency sustained the charge and removed her
effective January 25, 2019. Id. at 247. Following her removal, on May 23, 2019,
the appellant filed a formal complaint of discrimination alleging that her removal
was due to discrimination based on her race, age, religion, disability, and
retaliation for her prior equal employment opportunity (EEO) activity. IAF,
Tab 1 at 32-33, Tab 5 at 69-71. While the agency was investigating the
appellant’s formal complaint, on July 15, 2019, OWCP determined that the3
referee opinion of Dr. F.N. dated May 23, 2019, constituted the weight of medical
evidence in the appellant’s workers’ compensation case. IAF, Tab 5 at 179.
Based on the May 23, 2019 medical documentation, which indicated that the
appellant was capable of resuming gainful employment within imposed
restrictions, OWCP referred the appellant for vocational rehabilitation services.
Id. In particular, Dr. F.N.’s May 23, 2019 report indicated the following
permanent restrictions: no power grasping, simple grasping, precision grasping,
fingering, forward reaching, pushing, pulling, repetitive wrist or elbow
movements; infrequent reaching overhead; and a lifting capacity of 10 pounds.
IAF, Tab 6 at 7-19.
On September 20, 2019, the agency issued a Final Agency Decision
regarding the appellant’s formal complaint of discrimination, finding that the
appellant failed to prove her removal was motivated by discrimination. IAF,
Tab 5 at 32-47. On October 21, 2019, the appellant filed a Board appeal. IAF,
Tab 1. After holding a hearing, the administrative judge issued an initial decision
sustaining the agency’s sole charge of excessive absenteeism based on the factors
set forth in Cook v. Department of the Army , 18 M.S.P.R. 610, 611-12 (1984).
RAF, Tab 30, Initial Decision (ID) at 7-12. In particular, the administrative judge
found that the agency proved the following by preponderant evidence: the
appellant was absent from work for compelling reasons beyond her control
following a compensable injury so that the agency’s approval or disapproval was
immaterial because she could not be on the job; her absences from September 1,
2017,2 to January 25, 2019, continued beyond a reasonable time and the agency
warned the appellant via letter dated February 9, 2018, that an adverse action
could be taken unless she became available for duty on a regular basis; and her
position needed to be filled by an employee available for duty on a regular basis.
Id. The administrative judge further found that the appellant failed to prove her
2 Although the appellant was absent from work as of October 5, 2015, the agency relied
on September 1, 2017, as the date for the excessive absence analysis because that was
the date referenced in the February 9, 2018 warning letter. IAF, Tab 5 at 8 n.3.4
affirmative defenses of discrimination based on her race, age, religion, disability,
and retaliation for her prior EEO activity. ID at 12-25. Finally, the
administrative judge found that the agency established nexus and that the
appellant’s removal promoted the efficiency of the service. ID at 25-27.
The appellant has filed a petition for review in which she alleges that the
administrative judge erred in finding that she was unable to work, that she was
not able to perform the duties of her position on a part-time basis, and that her
position needed to be filled by an employee available for duty. Petition for
Review (PFR) File, Tab 2 at 14. She further asserts that the administrative judge
erred in finding that she failed to prove her affirmative defenses of disability
discrimination or retaliation for prior EEO activity. Id. at 16-26. The agency has
filed a response, and the appellant has replied. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
Remand is necessary to allow further development of the record concerning the
appellant’s medical evidence dated May 23, 2019.
The record reflects that, following the appellant’s January 25, 2019
removal, the appellant was examined by Dr. F.N. on May 23, 2019, per OWCP’s
request for a referee opinion. IAF, Tab 5 at 179, 230. Dr. F.N.’s May 23, 2019
report indicated that the appellant was capable of working within imposed
restrictions including the following permanent restrictions: no power grasping,
simple grasping, precision grasping, fingering, forward reaching, pushing,
pulling, repetitive wrist or elbow movements; infrequent reaching overhead; and a
lifting capacity of 10 pounds. IAF, Tab 6 at 7-19. OWCP determined that the
referee opinion of Dr. F.N. dated May 23, 2019, constituted the weight of medical
evidence in the appellant’s workers’ compensation case and referred the appellant
for vocational rehabilitation services. IAF, Tab 5 at 179. As part of that process,
an OWCP rehabilitation counselor was to contact the agency to determine if the
agency could offer work within the appellant’s new restrictions. Id. at 181-82.
Although the appellant appears to have fewer medical restrictions in the May 23,5
2019 report, notably with respect to taking breaks, Dr. F.N.’s medical report did
not relate the appellant’s medical restrictions to the duties of her position, and the
record is not developed on this issue. Thus, it is unclear whether the appellant
could perform the essential functions of her position within the restrictions
described in the May 23, 2019 report. Indeed, according to the agency, it is
“unclear that the limitations imposed by Dr. F.N. in May 2019 (after the removal)
would be compatible with the requirements of the job.” Id. at 15 n.7.
The Board has held that a removal for physical inability to perform the
functions of a position cannot be sustained when the appellant diligently obtains
and presents new medical evidence showing that, prior to the issuance of the
initial decision, she recovered from the condition that previously prevented her
from performing the duties of her position. See, e.g., Owens v. Department of
Homeland Security , 2023 MSPB 7, ¶ 15; Johnson v. U.S. Postal Service ,
120 M.S.P.R. 87, ¶ 8 (2013); Edwards v. Department of Transportation ,
109 M.S.P.R. 579, ¶ 19 (2008); Morgan v. U.S. Postal Service , 48 M.S.P.R. 607,
611-13 (1991); Street v. Department of the Army , 23 M.S.P.R. 335, 342-43
(1984). The Board has reasoned that evidence relating to the appellant’s
improved condition or subsequent reinstatement to duty is relevant to the
agency’s removal action at the time it was taken because such evidence relates to
the ultimate criterion, whether removal promotes the efficiency of the service.
Morgan, 48 M.S.P.R. at 611. Although such cases generally pertain to a removal
for physical inability to perform, the Board has also considered post-removal
medical evidence in the context of a removal for excessive absence. See
Campbell v. U.S. Postal Service , 94 M.S.P.R. 646, ¶ 17 (2003). Accordingly, on
remand the administrative judge shall afford the parties an opportunity to develop
the record concerning the appellant’s post-removal medical restrictions and
whether she is able to perform the essential functions of her job with such
restrictions, as well as whether the agency has offered the appellant modified
work in response to OWCP’s July 15, 2019 determination that the appellant’s6
post-removal medical documentation constitutes the weight of the medical
evidence in her workers’ compensation case.
The administrative judge shall decide whether the agency proved its charge based
on the record as developed on remand.
As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave. Williams v. Department of Commerce ,
2024 MSPB 8, ¶ 5. However, an exception exists when the following criteria are
met: (1) the employee was absent for compelling reasons beyond her control so
that agency approval or disapproval of leave was immaterial because she could
not be on the job; (2) the absences continued beyond a reasonable time, and the
agency warned the employee that an adverse action could be taken unless she
became available for duty on a regular full-time or part-time basis; and (3) the
agency showed that the position needed to be filled by an employee available for
duty on a regular, full-time or part-time basis. Id. (citing Cook, 18 M.S.P.R.
at 611-12). This exception is applicable only under unusual circumstances, i.e.,
when the employee is unable to return to duty because of the continuing effects of
illness or injury. Id.
Regarding factor 2, the administrative judge found that the appellant’s
absences from September 1, 2017, to January 25, 2019, continued beyond a
reasonable time and the agency warned the appellant via letter dated February 9,
2018, that an adverse action could be taken unless she became available for duty
on a regular basis. ID at 8. On review, the appellant does not dispute such
findings, and we discern no error in the administrative judge’s analysis.
Regarding factor 3, we similarly discern no error in the administrative judge’s
finding, based on the testimony of the appellant’s supervisors, that the appellant’s
position needed to be filled by an employee available for duty on a regular basis.
ID at 9. The appellant’s conclusory argument on review that this finding was
erroneous does not meet the Board’s criteria for review because she fails to7
explain how or why such a finding is erroneous. PFR File, Tab 2 at 14, 16; see
5 C.F.R. § 1201.115(a)(2).
Regarding factor 1, the administrative judge found that the appellant was
absent from work for compelling reasons beyond her control following a
compensable injury so that the agency’s approval or disapproval was immaterial
because she could not be on the job. ID at 8. In particular, the administrative
judge found that the appellant’s limitations were such that she was unable to
perform her job duties based on the testimony of the appellant’s supervisors that,
while the appellant was assigned an ad hoc part-time schedule of 4 hours a day
from August 13, 2014, to October 5, 2015, she was not performing a quarter of
the essential functions of her job due to the time restrictions, which had to be
assigned to other employees, and thus, she was not meeting the agency’s
operational needs. ID at 10-11.
On review, the appellant disputes the administrative judge’s finding that
she was unable to perform her job duties even under a modified part-time
schedule, but she fails to explain how or why such a finding was erroneous. PFR
File, Tab 2 at 14. Nonetheless, in light of our decision to remand for further
development of the record concerning the May 23, 2019 referee opinion, we
decline to decide whether the administrative judge properly found that the
appellant was unable to work due to her medical restrictions. We note that the
administrative judge’s finding that the appellant was unable to work is based
largely on events that occurred in 2015, over 3 years prior to the appellant’s
removal on January 25, 2019. ID at 11. Thus, the record on remand concerning
the May 2019 referee opinion, dated only 4 months after the appellant’s removal,
may shed light on the appellant’s ability to work at the time of the agency’s
decision to remove her. See Morgan, 48 M.S.P.R. at 611 (stating that the Board’s
review is not limited to the evidence supporting the agency’s decision at the time
the removal action was taken, and thus, the Board can rely on evidence of8
subsequent events that sheds light on the circumstances at the time that the
agency acted).
We vacate the administrative judge’s findings concerning the appellant’s
affirmative defense of disability discrimination and remand for further
adjudication.
Regarding the appellant’s affirmative defense of disability discrimination,
the administrative judge found that the appellant was disabled and assumed
without deciding that she was a qualified individual with a disability, i.e., that she
could perform the essential functions of her position with or without reasonable
accommodation. ID at 17, 21. However, the administrative judge found that the
appellant failed to fulfill her obligation to participate in the interactive process
because she never requested an accommodation either verbally or in writing. ID
at 18-21. He credited the testimony of the appellant’s supervisors over the
appellant that, although the appellant called and asked for the form to request
reasonable accommodations after she received the February 9, 2018 notice, the
agency mailed the form to the appellant, but the appellant never returned it or
made any attempt to request accommodation either verbally or in writing. ID
at 18-19. Rather, according to the appellant’s supervisors, the appellant would
express an interest in returning to work, her supervisor would ask her what the
agency could do to help her, and the appellant would indicate that she would
respond after speaking with her doctor but never did. ID at 19.
Such findings, however, fail to account for or address the appellant’s
arguments and evidence that she was absent from work due to a compensable
injury and that the agency received medical documentation from OWCP
indicating that she could work under certain medical restrictions. IAF, Tab 5
at 229 (February 16, 2015 medical restrictions from Dr. X.Y.), 235 (March 30,
2017 medical restrictions from Dr. X.Y.), Tab 6 at 59-61 (July 12, 2017 medical
restrictions from Dr. G.H.), 53 (November 27, 2017 restrictions from Dr. X.Y.).
Such medical documentation indicating that the appellant could return to work9
with restrictions constituted requests for reasonable accommodations. See Equal
Employment Opportunity Commission (EEOC) Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act (EEOC Enforcement Guidance) , Question 2, Example B, Notice
915.002, 2002 WL 31994335 (Oct. 17, 2002) (stating that, when an employee has
been out of work due to a workers’ compensation injury, a doctor’s letter stating
that she can return to work with certain restrictions constitutes a request for
reasonable accommodation). Thus, the administrative judge erred in finding that
the appellant never requested a reasonable accommodation.
The record reflects that, by letter dated October 5, 2015, the agency
notified the appellant that it was unable to accommodate her work restrictions—
specifically, the restriction of taking a 15-minute break every 30 minutes. IAF,
Tab 5 at 232. The appellant, however, maintains that she could have performed
her job duties with an accommodation, such as a modified schedule or using
voice-activated software, which would not have required her to make repetitive
motions with her hands and wrists throughout the day. RAF, Tab 13 at 10; PFR
File, Tab 2 at 16. The administrative judge did not analyze whether the appellant
could have performed the essential functions of her job with an accommodation
because he found that she failed to fulfill her obligations under the interactive
process by not requesting a particular accommodation, such as the use of Dragon,
a voice-activated computer software program. ID at 20-23. However, the
appellant’s failure to specifically request a specific accommodation, such as
voice-activated software, which she contends she was not aware of at the time,
did not dispense with the agency’s obligations as the administrative judge found.3
See Paris v. Department of the Treasury , 104 M.S.P.R. 331, ¶ 17 (2006) (stating
3 Although the administrative judge found that the agency provided the appellant with
information concerning voice-activated software in 2014, nothing in the record suggests
that such an accommodation was offered or suggested during the relevant time period
surrounding the agency’s October 5, 2015 determination that it could no longer
accommodate the appellant by means of a modified work schedule, or thereafter when it
proposed her removal. ID at 22.10
that an employee only has a general responsibility to inform his employer that he
needs accommodation for a medical condition, and once an employee has done so,
the employer must engage in the interactive process to determine an appropriate
accommodation); see also Collins v. U.S. Postal Service , 100 M.S.P.R. 332, ¶ 11
(2005) (stating that both parties have an obligation to assist in the search for an
appropriate accommodation). But see Sanchez v. Department of Energy ,
117 M.S.P.R. 155, ¶ 18 (2011) (noting that the agency’s failure to engage in the
interactive process alone does not violate the Rehabilitation Act; rather the
appellant must show that this omission resulted in failure to provide reasonable
accommodation). Moreover, the Board has repeatedly stated that an employing
agency is in a better position than a disabled employee to know about its ability
to modify duties or working conditions to meet the needs of the employee. See,
e.g., Paris, 104 M.S.P.R. 331, ¶ 17; Baker v. U.S. Postal Service , 71 M.S.P.R.
680, 693 (1996); Lynch v. Department of Education , 52 M.S.P.R. 541, 545
(1992); Savage v. Department of the Navy , 36 M.S.P.R. 148, 152 n.2 (1988).
Accordingly, based on the record as developed on remand, the
administrative judge shall make findings concerning whether the appellant was
able to perform the essential functions of her job with an accommodation such as
a modified schedule or the use of voice-activated software, and/or whether such
accommodations would have been an undue hardship for the agency. See Paris,
104 M.S.P.R. 331, ¶¶ 25-29 (remanding for consideration of whether
voice-activated software would have allowed the appellant to perform the
essential functions of his job); see also Alvara v. Department of Homeland
Security, 121 M.S.P.R. 613, ¶ 41 (2014) (stating that the Rehabilitation Act
requires Federal agencies to provide reasonable accommodations to qualified
individuals with disabilities unless to do so would cause an undue hardship);
EEOC Enforcement Guidance, Questions 22-23 (discussing a modified schedule
as a reasonable accommodation). 11
The appellant’s arguments on review fail to establish any error in the
administrative judge’s finding that she failed to prove her affirmative defense of
reprisal for EEO activity. 4
Regarding the appellant’s affirmative defense of reprisal for EEO activity,
the administrative judge found that the appellant participated in protected activity
when she pursued informal EEO counseling sometime prior to 2010, filed a
formal complaint of discrimination on February 9, 2012, and briefly discussed the
possibility of an accommodation in February 2018. ID at 24. However, the
administrative judge credited the testimony of the appellant’s second-level
supervisor that she was unaware of the protected activity. ID at 25. He further
found that the remoteness between the appellant’s protected activity that occurred
between 2009 and 2012 and her January 25, 2019 removal did not suggest a
retaliatory motive. Id. Ultimately, the administrative judge concluded that there
was no evidence that the appellant’s prior protected activity was a motivating
factor in her removal.5 Id. The appellant’s conclusory and unsupported
arguments on review that she felt belittled, undermined, disregarded, subjected to
offensive and derogatory comments and was treated less favorably by her
supervisory chain of command fail to establish any error in the administrative
judge’s finding. PFR File, Tab 2 at 26.
On review, the appellant also asserts that she also engaged in protected
activity in 2014 by providing an affidavit in support of her coworker’s
4 On review, the appellant does not challenge the administrative judge’s findings that
she failed to prove her affirmative defenses of discrimination based on religion, race,
and age, and we discern no error in the administrative judge’s analysis of such claims.
5 The appellant’s alleged claims of reprisal for requesting a reasonable accommodation
and/or discussing the possibility of an accommodation are governed by the
Rehabilitation Act, which requires proof that the protected activity was a “but for”
cause of the adverse employment action, not merely a motivating factor. See Desjardin
v. U.S. Postal Service , 2023 MSPB 6, ¶ 33. However, such an error does not affect the
outcome because the administrative judge found that the appellant failed to meet her
burden of proof under the lower, motivating factor standard. See Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is
not prejudicial to a party’s substantive rights provides no basis for reversal of an initial
decision).12
discrimination complaint.6 Id. at 25. She asserts that her removal was retaliatory
because her 2014 protected activity occurred shortly before the agency’s
October 5, 2015 decision to no longer allow her to work part-time and subsequent
refusal to help her find an effective accommodation. Id. at 25-26. Such
arguments, however, were not diligently raised before the administrative judge,
and the appellant has failed to cite to any supporting evidence in the record.
Thus, we find such arguments do not meet the Board’s criteria for review. See
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (indicating
that the Board generally will not consider an argument raised for the first time in
a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence); 5 C.F.R.
§ 1201.115(a)(2) (providing that a petitioner who alleges that the administrative
judge made erroneous findings of material fact must explain why the challenged
factual determination is incorrect and identify specific evidence in the record that
demonstrates the error).
On remand, the administrative judge shall provide jurisdictional notice regarding
the appellant’s potential restoration claim.
The record appears to reflect that the appellant’s absences were due to her
compensable injuries and that she was able to return to work under medical
restrictions. IAF, Tab 5 at 229-35. Further, in light of the appellant’s allegation
that she could have returned to work under such restrictions, but the agency
would not allow her to do so, IAF, Tab 1 at 78-79; PFR File, Tab 2 at 16, we find
6 The appellant also asserts that she filed a formal complaint of discrimination in 2011
alleging that her supervisors downplayed her Spanish-speaking skills and regularly
showed preferential treatment to comparators who were outside of her race and age.
PFR File, Tab 2 at 25. However, she cites to no evidence in the record in support of her
argument, and it is unclear if she is referring to the formal complaint of discrimination
she filed on February 9, 2012, alleging, among other things, discrimination based on
management’s failure to add her name to the bilingual translation list, which the
administrative judge addressed. ID at 24. Regardless, beyond a conclusory allegation
that she may have participated in additional protected activity in 2011, the appellant has
not offered any evidence that such activity was a motivating factor in her removal.13
that the appellant may have been attempting to raise a claim that she was denied
restoration as a partially recovered individual under 5 C.F.R. § 353.301(d), see
5 C.F.R. § 353.304(c) (providing that an individual who is partially recovered
from a compensable injury may appeal to the Board for a determination of
whether the agency is acting arbitrarily and capriciously in denying restoration).
The administrative judge did not provide the appellant with notice of her burden
of proving Board jurisdiction over a denial of restoration claim, and the agency’s
submissions below did not place the appellant on notice of what was required to
establish Board jurisdiction over such a claim. Accordingly, on remand, the
administrative judge shall apprise the appellant of how to establish Board
jurisdiction over her restoration claim and provide her with an opportunity to file
evidence and argument on this issue.7 See Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must
receive explicit information on what is required to establish an appealable
jurisdictional issue); see also Colleran v. U.S. Postal Service , 112 M.S.P.R. 650,
¶¶ 9-10 (2009) (remanding a restoration claim when the administrative judge
failed to provide the appellant with Burgess notice).
We note that an agency’s obligation to accommodate an employee’s
disabilities pursuant to the Rehabilitation Act is somewhat similar in nature and
purpose to its obligation to restore a former employee after a compensable injury.
See Leach v. Department of Commerce , 61 M.S.P.R. 8, 20 (1994); Patrick v.
Department of the Air Force , 39 M.S.P.R. 392, 396 (1988); 5 C.F.R.
§ 353.301(d). However, such claims are not synonymous and require separate
adjudication. See, e.g., Morman v. Department of Defense , 84 M.S.P.R. 96, ¶ 9
7 We make no finding concerning the timeliness of the appellant’s restoration claim.
See 5 C.F.R. § 1201.22(b)-(c) (providing that an appeal must be filed no later than
30 days after the effective date, if any, of the action being appealed or 30 days after the
date of receipt of the agency’s decision, whichever is later, unless good cause is
shown); see also Cranston v. U.S. Postal Service , 106 M.S.P.R. 290, ¶ 9 (2007)
(discussing the appellant’s burden to prove timeliness if he is not provided with notice
of appeal rights).14
(1999) (finding that, even if an accommodation would constitute an undue
hardship for the agency, the fact that the agency might be incapable of reasonably
accommodating the appellant in her former position would not necessarily mean
that the agency did not arbitrarily and capriciously deny the appellant restoration
to a position with less demanding physical requirements).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall afford the parties the opportunity to submit additional
evidence and argument concerning the appellant’s post-removal medical
evidence. The administrative judge shall then issue a new decision that addresses
the issues raised herein and their effect on the outcome of the appeal.8
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
8 In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.15 | McKinley_NitaSF-0752-20-0041-I-2__Remand_Order.pdf | 2024-07-25 | NITA MCKINLEY v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-0752-20-0041-I-2, July 25, 2024 | SF-0752-20-0041-I-2 | NP |
865 | https://www.mspb.gov/decisions/nonprecedential/Hays_Casey_S_DE-0752-23-0078-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CASEY HAYS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-23-0078-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Casey Hays , Commerce City, Colorado, pro se.
Alexander R. Rivera , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
upheld his removal based on a charge of unacceptable conduct and found that he
did not prove any of his affirmative defenses. On petition for review, the
appellant challenges the administrative judge’s finding that the agency did not
violate his due process rights based on its service of the notice of proposed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
removal. Petition for Review (PFR) File, Tab 3. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The appellant does not explicitly challenge the administrative judge’s
decision to sustain the charged misconduct,2 her findings that the agency proved
nexus and the reasonableness of the removal penalty, or her conclusion that he
did not prove his disability discrimination or harmful procedural error claims.
PFR File, Tab 3 at 4-10. We discern no error with the administrative judge’s
analysis of these issues, and we affirm her findings in these regards.
2 The appellant asserts that he can provide copies of communications between himself
and the recipients of the text messages “to dispute arguments made in their statements
for this case,” and he explains that he did not previously provide this documentation
because he thought they were “irrelevant.” PFR File, Tab 3 at 4. These arguments are
not persuasive. Importantly, the appellant was on notice that the administrative judge
would adjudicate the unacceptable conduct charge, and the record has closed. Initial
Appeal File, Tabs 7, 14; see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14
(1980) (stating that 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). 2
¶3The only issue before the Board is whether the agency’s service of the
notice of proposed removal comported with due process.3 The fundamental right
of due process requires that a tenured public employee receive oral or written
notice of the charges against him, an explanation of the agency’s evidence, and an
opportunity to respond, either in person or in writing. Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 538-39, 546-48 (1985); Schmitt
v. Department of Veterans Affairs , 2022 MSPB 40, ¶ 18. An agency’s failure to
provide these rights deprives a tenured employee of his property right in his
employment. Loudermill, 470 U.S. at 546; Schmitt, 2022 MSPB 40, ¶ 18. The
Board has held that to meet its obligations under Loudermill to provide advanced
notice prior to effecting a removal action, an agency must make diligent and
intelligent efforts such as might reasonably be adopted by one desirous of
actually informing the employee. Schmitt, 2022 MSPB 40, ¶ 18. An appellant’s
claim that an agency violated his due process rights is an affirmative defense,
which he must prove by preponderant evidence. Helman v. Department of
Veterans Affairs , 856 F.3d 920, 937 (Fed. Cir. 2017); Hulett v. Department of the
Navy, 120 M.S.P.R. 54, ¶¶ 10-11 (2013); 5 C.F.R. § 1201.56(b)(2)(i)(C).
¶4The appellant argues, for the first time on review, that he received
“incorrectly addressed mail”—a July 13, 2020 notice of the due process
interview, which was sent to the Josephine Street address—because he “managed
the zip code where [the Josephine Street address and the Cook Street address] are
located,” “the carrier knew [him] personally, ” and the “mail carrier delivered it to
the correct address [on Cook Street] as mail carriers are required to make every
reasonable effort to deliver mail where they know it should be delivered.” PFR
File, Tab 3 at 4. It is significant that the appellant admits on review that he
received the July 13, 2020 notice to report for an investigative interview, which
listed Josephine Street as his address of record. Initial Appeal File (IAF), Tab 6
3 Because timeliness of the appeal is not an issue in this matter, we do not discuss the
appellant’s arguments related to service of the notice of decision.3
at 44. Importantly, the appellant had an obligation to apprise the agency of his
correct address. See Schmitt, 2022 MSPB 40, ¶ 21 (holding that an employee is
generally responsible for keeping his employing agency apprised of any changes
in address); see also IAF, Tab 6 at 12 (stating, in the agency’s standards of
conduct, that “[e]mployees must keep the installation head informed of their
current mailing addresses”). The appellant does not allege, and the record does
not show, that he made any effort to correct his address in the agency’s records
after receiving the July 13, 2020 notice.4
¶5On review, the appellant reiterates that the agency sent the notice of
proposed removal to the wrong Josephine Street address, and he was unaware of
it until after he was released in October 2021. PFR File, Tab 3 at 4. He asserts
that he can provide documentation that the agency had his correct address, as the
Postal Inspection Service visited his Cook Street address prior to the issuance of
the notice of proposed removal. Id. The administrative judge considered this
evidence in the initial decision, but she found that it did not persuade her that the
appellant did not receive the proposal notice. ID at 19, 22-23. The Board will
not disturb an administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions on issues
of credibility. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997);
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359
(1987).
¶6The appellant also argues that 5 C.F.R. § 1201.22(b)(3) applies only to
agency decisions, not notices of proposed removal, and it does not alleviate the
agency of its obligations to provide the appellant with due process, including
notice of the charges against him and an opportunity to respond. PFR File, Tab 3
at 5; see 5 C.F.R. § 1201.22(b)(3) (“An appellant is responsible for keeping the
4 The appellant’s mother submitted a change of address form following his incarceration
on an unrelated offense on September 21, 2020. IAF, Tab 15 at 70-72. However, the
change of address form was submitted after the agency served the notice of proposed
removal to the Josephine Street address.4
agency informed of his . . . current home address for purposes of receiving the
agency’s decision.”). We need not resolve the scope of 5 C.F.R. § 1201.22(b)(3)
because, as noted above, the appellant does not dispute that he had an obligation
to keep the agency informed of his address, and he failed to do so. For the
reasons described in the initial decision and herein, we discern no error with the
administrative judge’s conclusion that the agency’s service of the notice of
proposed removal comported with due process.
¶7We have considered the appellant’s remaining arguments, but none warrants
a different outcome.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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.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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Hays_Casey_S_DE-0752-23-0078-I-1__Final_Order.pdf | 2024-07-24 | CASEY HAYS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-23-0078-I-1, July 24, 2024 | DE-0752-23-0078-I-1 | NP |
866 | https://www.mspb.gov/decisions/nonprecedential/Lipford_Crystal_L_AT-0353-20-0166-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRYSTAL L. LIPFORD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0353-20-0166-I-1
DATE: July 24, 2024
THIS ORDER IS NONPRECEDENTIAL1
John R. Macon , Memphis, Tennessee, for the appellant.
Lori Markle , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
In 2017, the appellant sustained an injury, which the Office of Workers’
Compensation Programs (OWCP) found compensable. Initial Appeal File (IAF),
Tab 5 at 27-28. She was absent from work for approximately 2 years following
her injury. IAF, Tab 1 at 7.
In May 2019, the agency received an OWCP Form CA-17 (CA-17), Duty
Status Report, completed by the appellant’s doctor, outlining her medical
restrictions. IAF, Tab 5 at 25-26. The report indicated, among other things, that
she could only walk for up to 2 hours per day. Id. at 13. On May 14, 2019, the
agency offered the appellant a full-time modified assignment. IAF, Tab 1 at 12.
The appellant accepted the offer. Id.
In June 2019, the agency received updated medical restrictions for the
appellant, indicating that she could sit for 7 hours per day and stand and walk
each for 1 hour per day. IAF, Tab 5 at 22. The record does not reflect any
change to the appellant’s May 2019 job offer in June 2019 to incorporate these
new restrictions. On October 16, 2019, the appellant’s doctor completed a new
CA-17 that appears consistent with the June 2019 restrictions. Id. at 16. On
October 29, 2019, the agency offered the appellant a new modified assignment for
only 4 hours per day, 5 days per week. Id. at 14-15. According to the appellant,
the agency advised her it was reducing her work hours due to a lack of work.
IAF, Tab 1 at 7. The appellant accepted the offer.2 IAF, Tab 5 at 14.
This appeal followed, with the appellant asserting, among other things, that
the agency reduced her work hours without first searching her commuting area for
a full-time position within her medical restrictions. IAF, Tab 1 at 7. The
appellant requested a hearing. Id. at 1.
2 On review, the appellant indicates that the agency returned her to full-time work on
January 23, 2020. Petition for Review File, Tab 1 at 5.2
In her initial decision dismissing the appeal for lack of jurisdiction, the
administrative judge found that the appellant nonfrivolously alleged that she was
absent from her position due to a compensable injury and that she recovered
sufficiently to return to work in a position with less demanding physical
requirements. IAF, Tab 7, Initial Decision (ID) at 4. She concluded, however,
that the appeal had to be dismissed because the appellant failed to nonfrivolously
allege that the agency denied her request for restoration or that any such denial
was arbitrary and capricious. Id. The administrative judge found that the Board
lacked jurisdiction to consider the details and circumstances of the restoration to
which the appellant objected. Id. The administrative judge also observed that, to
the extent the appellant claimed she was denied a reasonable accommodation or
otherwise subjected to discrimination, the Board lacked jurisdiction to consider
such a claim absent an otherwise appealable action. ID at 5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The Federal Employees’ Compensation Act provides, 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); Scott v.
U.S. Postal Service , 118 M.S.P.R. 375, ¶ 6 (2012). As to “partially recovered”
individuals, defined in the regulations as those who have recovered sufficiently to
return to part-time or light duty, or to another position with less demanding
physical requirements, agencies are required by regulation to “make every effort
to restore [such individuals] in the local commuting area.” Scott, 118 M.S.P.R.
375, ¶ 6; 5 C.F.R. §§ 353.102, 353.301(d).
Under 5 C.F.R. § 353.304(c), the Board has jurisdiction to review whether
an agency’s denial of restoration to a partially recovered employee was arbitrary
and capricious. Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 10 (2016).3
In order to establish jurisdiction over a restoration appeal under that section, an
appellant must nonfrivolously allege that (1) she was absent from her position due
to a compensable injury; (2) she recovered sufficiently to return to duty on a
part-time basis or to return to work in a position with less demanding physical
requirements than those previously required of her; (3) the agency denied her
request for restoration; and (4) the denial was arbitrary and capricious because of
the agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d). Id.,
¶ 12. If the appellant makes nonfrivolous allegations of jurisdiction regarding all
four elements of the jurisdictional standard, she is entitled to a hearing on the
merits. See id., ¶ 13.
Here, the administrative judge found that the appellant nonfrivolously
alleged the first two elements of her partial restoration claim—that she was
absent from her position due to a compensable injury and that she recovered
sufficiently to return to work in a position with less demanding physical
requirements. ID at 4. These findings are not challenged on review, and we
discern no reason to disturb them.3
Regarding the third element of the jurisdictional test, the administrative
judge found that the appellant failed to nonfrivolously allege that the agency
denied her restoration because the record reflected that the agency made two
offers of limited duty assignments, one in May 2019 and the other in October
2019, both of which the appellant accepted. ID at 4. The administrative judge
3 A physically disqualified individual is one who cannot, or for medical reasons should
not, perform the duties of her former position, and who is not expected to improve or
recover. Hamilton, 123 M.S.P.R. 404, ¶ 15 n.9; 5 C.F.R. § 353.102. Here, it seems
possible that the appellant is a physically disqualified individual rather than a partially
recovered individual because her condition is chronic and the record does not indicate
whether she is expected to recover. IAF, Tab 5 at 16. Regardless, the appellant’s rights
would be the same because after 1 year from the date eligibility for compensation
begins, a physically disqualified individual is entitled to the rights accorded individuals
who fully or partially recover, as applicable. See Hamilton, 123 M.S.P.R. 404, ¶ 15 n.9;
5 C.F.R. § 353.301(c). 4
also indicated that the Board lacked jurisdiction to review the details and
circumstances of the restoration. Id.
The Board has indeed held that a partially recovered individual who has
been restored to duty may not challenge the details or circumstances of the
restoration. E.g., Scott, 118 M.S.P.R. 375, ¶ 9. The Board has also found,
however, that an agency’s rescission of a previously provided restoration or the
discontinuation of a limited duty position may constitute an appealable denial of
restoration. Id. The Board has additionally found that an agency’s partial
elimination of a previously afforded limited duty constitutes a rescission of a
previously provided restoration. Id.
In Scott, the appellant initially received a limited duty assignment
consisting of 8 hours of work per day following her partial recovery from a
compensable injury. Id., ¶ 2. She thereafter received a modified assignment
offer that reduced her work hours to 5 hours per day and, after that, received a
modified assignment offer that further reduced her work hours to 2 hours per day.
Id. The Board found each of these reductions in work hours to constitute a denial
of restoration. Id., ¶¶ 9-10. The Board noted that an employee need not protest
such an action for it to constitute a denial of restoration. Id., ¶ 10 n.2.
Here, similarly, the appellant initially received a limited duty assignment
consisting of 8 hours of work per day following her partial recovery from a
compensable injury but thereafter received a modified assignment offer that
reduced her work hours to 4 hours per day. IAF, Tab 1 at 14. Accordingly, we
find that there is at least a nonfrivolous allegation that the appellant was denied
restoration when her work hours were reduced. See Scott, 118 M.S.P.R. 375,
¶ 10.
Regarding the fourth element of the jurisdictional test, the administrative
judge found that the appellant failed to nonfrivolously allege that any denial of
restoration was arbitrary and capricious. ID at 4. To satisfy the fourth element,
an appellant must nonfrivolously allege that the agency failed to search within the5
local commuting area for vacant positions to which it could restore her and to
consider her for such vacancies. Cronin v. U.S. Postal Service , 2022 MSPB 13,
¶ 20.
Here, the appellant asserts that the agency reduced her work hours without
first searching the local commuting area for a full-time position within her
medical restrictions.4 IAF, Tab 1 at 7; PFR File, Tab 1 at 2, 4. Notably, at the
time that the agency reduced the appellant’s work hours, her most recent CA-17
suggested that she could work 8 hours per day. For example, she could sit for up
to 7 hours per day and walk for up to 1 hour per day. IAF, Tab 5 at 16.
In its narrative response to this appeal, the agency indicated that it reduced
the appellant’s work hours in October 2019 both because it no longer had the
same business needs as it did when it offered her the full-time position in
May 2019, and because her updated medical report further restricted the amount
of time she could stand and walk. Id. at 7-8. In Scott, the agency similarly
argued that it merely reduced the appellant’s work hours to what was
operationally necessary within her medical restrictions. Scott, 118 M.S.P.R. 375,
¶ 12. However, because there was no indication that the agency in that case
conducted a search for work within her medical restrictions in the local
commuting area, the Board found that its reductions of her work hours constituted
arbitrary and capricious denials of restoration. Id.
Here, because the agency does not dispute the appellant’s assertion that it
failed to search the local commuting area prior to reducing her hours, and the
4 The appellant has also indicated that she believes an agency-wide search should have
been performed. IAF, Tab 1 at 7; PFR File, Tab 1 at 5. However, as indicated above,
jurisdiction over an alleged denial of restoration is established, as relevant here, by
making a nonfrivolous allegation that the agency failed to comply with the minimum
requirement to make every effort to restore a partially recovered individual in the local
commuting area. Cronin, 2022 MSPB 13, ¶ 20; 5 C.F.R. § 353.301(d). To the extent
that the appellant argues that, under Latham v. U.S. Postal Service , 117 M.S.P.R. 400
(2012), the agency was required to provide her with work that was available, regardless
of whether such work fell within the duties of a vacant position, the Board has since
overruled this holding from Latham. PFR File, Tab 1 at 5; IAF, Tab 1 at 7, Tab 6
at 3-4; Cronin, 2022 MSPB 13, ¶¶ 15-20.6
record otherwise fails to indicate that it conducted a local commuting area search,
we find that the appellant has nonfrivolously alleged that the agency’s reduction
of her work hours constituted an arbitrary and capricious denial of restoration.
Accordingly, we find that the appellant has established the Board’s jurisdiction
over this partial restoration appeal.5
The appellant has also alleged that the agency discriminated against her
based on her disability. IAF, Tab 1 at 8; PFR File, Tab 1 at 5. Because we find
that the appellant has established the Board’s jurisdiction over this restoration
appeal, on remand, the administrative judge must also adjudicate the appellant’s
disability discrimination claim. See Desjardin v. U.S. Postal Service ,
2023 MSPB 6, ¶ 21. We emphasize, however, that 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.
The appellant further asserts that the agency failed to respond to her
discovery requests. PFR File, Tab 1 at 2-3. We find it unnecessary to address
this assertion because any outstanding discovery matters can be addressed on
remand. See Urena v. U.S. Postal Service , 113 M.S.P.R. 6, ¶ 15 (2009).
5 On review, the appellant attaches a pleading she submitted below. IAF, Tab 6; PFR
File, Tab 1 at 13-18. She also attaches arguments and evidence that are not in the
record below. PFR File, Tab 1 at 7-12, 19-22. Because we find that the existing record
is sufficient to establish jurisdiction, we have not considered these documents for the
first time on review. If appropriate, and in accordance with the Board’s procedures, on
remand the appellant may submit these documents into the record.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.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Lipford_Crystal_L_AT-0353-20-0166-I-1__Remand_Order.pdf | 2024-07-24 | CRYSTAL L. LIPFORD v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0353-20-0166-I-1, July 24, 2024 | AT-0353-20-0166-I-1 | NP |
867 | https://www.mspb.gov/decisions/nonprecedential/Marquis_Noel_A_AT-0752-20-0220-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NOEL A. MARQUIS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-20-0220-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Noel A. Marquis , Groveland, Florida, pro se.
Jessica V. Johnson , Esquire, and Owen Keegan , 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
dismissed his removal appeal for failure to prosecute. For the reasons set forth
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The appellant filed this appeal of the agency’s removal action with the
Board. Initial Appeal File (IAF), Tab 1 at 1-5. As discussed in the initial
decision, the appellant failed to appear for an initial status conference and to
respond to the administrative judge’s order regarding the affirmative defense of
disability discrimination. IAF, Tab 11, Initial Decision (ID) at 2. Based on the
written record, the administrative judge issued an initial decision dismissing the
appeal for failure to prosecute. ID at 1, 3.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to show good cause for the 1-day delay in filing his
petition for review.
Generally, a petition for review must be filed within 35 days after the date
of issuance of the initial decision or, if the petitioner shows that he received the
initial decision more than 5 days after the date of issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
administrative judge informed the appellant that the initial decision would
become the Board’s final decision on April 14, 2020, unless a petition for review
was filed by that date. ID at 3. The administrative judge further informed the
appellant that, if he proved that he received the initial decision more than 5 days
after the date of issuance, he could file a petition for review within 30 days after
the date of receipt. ID at 4. The record reflects that the appellant received the
initial decision on March 10, 2020, the date of issuance.2 ID at 1; IAF, Tab 12;
2 The certificate of service reflects that, on March 10, 2020, the initial decision was
served electronically by email on the appellant, who had registered as an e-filer.
IAF, Tab 1 at 2, Tab 12; see 5 C.F.R. § 1201.14(j)(1) (2020) (providing for the2
see 5 C.F.R. § 1201.14(m)(2) (2020) (providing that Board documents served
electronically on registered e-filers are deemed received on the date of electronic
submission). The appellant does not argue otherwise. PFR File, Tab 1 at 3.
Thus, the deadline for filing a petition for review was April 14, 2020, the 35th
day after the date of issuance of the initial decision. See 5 C.F.R. § 1201.114(e).
The appellant filed a petition for review on April 15, 2020, one day past the
filing deadline.3 PFR File, Tab 1. In relevant part, the appellant’s brief petition
for review states, “I have already filed one plea to re-evaluate the case since the
judge did not complete his due diligence. The judge stated I did not meet or
adhere to the timeline and information requested which is not the case.” Id. at 3.
In an acknowledgment letter, the Office of the Clerk of the Board notified the
appellant that his petition for review was untimely filed and that he could file a
motion with the Board to accept his filing as timely and/or to waive the time limit
for good cause. PFR File, Tab 2 at 1-2. The letter further informed the appellant
that such a motion must include a signed statement (made under penalty of
perjury) or an affidavit, and that the motion must be sent by May 1, 2020. Id.
at 2. The appellant has not filed any argument or evidence in response to the
Office of the Clerk of the Board’s notice regarding the timeliness of his petition
for review.
The Board may waive the time limit for filing a petition for review upon a
showing of good cause for the untimely filing. 5 C.F.R. §§ 1201.12, 1201.114(g).
To establish good cause, the appellant must show that he exercised due diligence
or ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether
an appellant has shown good cause, the Board will consider the length of the
electronic service of Board documents on e-filers).
3 The pleading that the Office of the Clerk of the Board docketed as the appellant’s
petition for review reflects that the date of electronic submission was April 15, 2020.
PFR File, Tab 1, Tab 2 at 1 n.*; see 5 C.F.R. §§ 1201.4( l) (providing that the date of
filing by e-filing is the date of electronic submission), 1201.14(m)(1) (2020) (same).3
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).
Although the appellant’s pro se status and the minimal length of his 1-day
filing delay weigh in favor of finding good cause, we find that they are
outweighed by the remaining Moorman factors. See, e.g., Ellison v. U.S. Postal
Service, 45 M.S.P.R. 244, 245 & n.4, 246 (1990) (finding no good cause for the
pro se appellant’s 2-day delay in filing a corrected petition for review when,
among other things, he was unable to find a job, he was unable to find counsel,
and there was a pending foreclosure on his home). The appellant’s arguments
challenging the dismissal of his appeal for failure to prosecute are not relevant to
the timeliness of his petition for review. PFR File, Tab 1 at 3; see Marasco v.
U.S. Postal Service , 66 M.S.P.R. 555, 558 (1995) (finding that the appellant’s
arguments on the merits were not relevant to the untimeliness of his petition for
review). Further, despite receiving notice of the filing deadline in the initial
decision and an opportunity to respond on the timeliness issue on review, the
appellant has failed to address the timeliness of his petition for review. PFR File,
Tab 2 at 1-2; ID at 3-4; see Cabarloc v. Department of Veterans Affairs ,
112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding that the pro se appellant failed to
demonstrate diligence or ordinary prudence that would excuse his 10-day filing
delay when he failed to respond to the Clerk’s notice regarding timeliness). In
addition, the appellant has not presented any evidence of the existence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from filing a timely petition for review. Therefore, under the4
particular circumstances of the case, we find that the appellant has failed to
establish good cause for his untimely filing.
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 failure to prosecute the removal appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Marquis_Noel_A_AT-0752-20-0220-I-1__Final_Order.pdf | 2024-07-24 | NOEL A. MARQUIS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-20-0220-I-1, July 24, 2024 | AT-0752-20-0220-I-1 | NP |
868 | https://www.mspb.gov/decisions/nonprecedential/Chalkley_Milton_D_DC-0841-20-0319-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MILTON D. CHALKLEY, III,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0841-20-0319-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Milton D. Chalkley, III , Suffolk, Virginia, 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
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal concerning the payment, from the
Office of Personnel Management (OPM) to his former spouse, of a portion of his
Federal Employees’ Retirement System annuity benefits pursuant to a court order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
For the first time on review, the appellant raises concerns regarding OPM’s
delay in issuing a final decision. Petition for Review (PFR) File, Tab 1 at 4-5.
He has failed to explain why, despite his due diligence, he was unable to raise
such concerns prior to when the record before the administrative judge closed.
See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (finding
that the Board generally will not consider an argument raised for the first time in
a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence).
In any event, we discern no reason to disturb the initial decision based on
the appellant’s assertions on review. Importantly, he does not dispute OPM’s
representation that it will issue a final decision after completing an audit. Initial
Appeal File, Tab 6 at 4. Further, he has not alleged, and the record does not
suggest, that OPM has refused or improperly failed to issue a final decision.
Cf., Okello v. Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14 (2014)
(observing that the Board will take jurisdiction over an appeal concerning a2
retirement matter in which OPM has refused or improperly failed to issue a final
decision). In addition, his dispute of OPM’s interpretation of the court order
concerns the merits of the appeal, which are irrelevant to the jurisdictional issue
before the Board. PFR File, Tab 1 at 4-5; see, e.g., Sapla v. Department of the
Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments on the
merits of her appeal were not relevant to the jurisdictional question).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction.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
2 The appellant has filed a new appeal concerning the allocation of his retirement
benefits. The administrative judge found that the Board has jurisdiction over that
appeal, which is in a dismissed without prejudice status. Chalkley v. Office of
Personnel Management , MSPB Docket No. DC-0841-22-0471-I-1, Initial Decision (July
25, 2022).
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 | Chalkley_Milton_D_DC-0841-20-0319-I-1_Final_Order.pdf | 2024-07-24 | null | DC-0841-20-0319-I-1 | NP |
869 | https://www.mspb.gov/decisions/nonprecedential/Hendy_David_M_CH-1221-20-0151-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-20-0151-W-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David M. Hendy , Chicago, Illinois, pro se.
Grant T. Swinger and Stephanie Macht , Hines, Illinois, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) 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).
On February 27, 2020, the administrative judge issued an initial decision
dismissing the appellant’s IRA appeal for lack of jurisdiction based on his failure
to establish exhaustion before the Office of Special Counsel. Initial Appeal File
(IAF), Tab 22, Initial Decision (ID) at 2, 14. The initial decision informed the
parties that the decision would become the Board’s final decision unless either
party filed a petition for review by April 2, 2020. ID at 14.
On May 8, 2020, the appellant requested a 45-day extension of time in
which to file his petition for review. Petition for Review (PFR) File, Tab 1 at 3.
He explained that he had suffered extreme hardship over the previous 2 months,
which had provided good cause for his requests for an extension of time to file
pleadings in two of his other appeals pending in a Board regional office.
Specifically, he claimed that he had undergone cancer surgery and that there had
been a death in his household. Id. The appellant then argued the merits of his
petition for review, id. at 5-9, submitting additional documentation for the
Board’s consideration. Id. at 12-14.
On May 8, 2020, the Clerk of the Board denied the appellant’s request for
an extension of time in which to file his petition for review on the basis that any
such a request must be filed on or before the due date of the petition for review,
here, April 2, 2020. PFR File, Tab 2 at 1 n.*. The Clerk explained that, because
the appellant’s petition appeared to be untimely filed, it must be accompanied by
a motion to accept the filing as timely, and/or waive the time limit for good
cause. Id. at 2. The Clerk further explained that, if the appellant wished to file
such a motion, he must include either: (1) a statement, signed under penalty of
perjury, or (2) an affidavit showing either that his petition was timely filed, even
though it was filed more than 35 days after the initial decision was issued, or that
there is good cause for the late filing. The Clerk enclosed for the appellant a
“Motion to Accept Filing as Timely or to Waive Time Limit” form, id. at 7-8,
advising him that his motion and properly-filed statement must be filed by
May 23, 2020, and stating that, if he did not do so, the Board may dismiss his2
petition for review as untimely filed, which would result in the initial decision
becoming the Board’s final decision. Id. at 2. The appellant did not submit such
a motion.2
The appellant bears the burden of proof by preponderant evidence
regarding timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition for review must
be filed within 35 days after issuance of the initial decision or, if a party shows
that he received the ID more than 5 days after it was issued, within 30 days of
receipt.3 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 time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Williams, 109 M.S.P.R.
237, ¶ 7; 5 C.F.R. § 1201.114(g). To establish good cause for an untimely filing,
a party must show that he exercised due diligence or ordinary prudence under the
particular circumstances of the case. Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180, 184 (1980). Here, the appellant’s petition for review is 5 weeks
late, and he has failed to comply with the Board’s order to either file a motion to
accept the filing as timely or waive the time limit for good cause.
Accordingly, we dismiss the petition for review as untimely filed.4 This is
the final decision of the Merit Systems Protection Board regarding the timeliness
2 The appellant did file a pleading on May 29, 2020, which the Board did not accept,
finding it an additional pleading and, therefore, unauthorized under 5 C.F.R.
§ 1201.114(a), (e). PFR File, Tab 3.
3 The appellant raises no such claim regarding receipt.
4 Even if we were to consider the claims the appellant raised in his May 8, 2020
pleading, we would still find that the appellant has not establish good cause for the
untimely filing. To establish that an untimely filing was the result of an illness, the
party must: (1) identify the time period during which he suffered from the illness;
(2) submit medical evidence showing that he suffered from the alleged illness during
that time period; and (3) explain how the illness prevented him from timely filing his
appeal or a request for an extension of time. Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998). Based on the record evidence in this appeal, the
appellant’s vague assertions, unsupported by medical documentation, fail to establish
that he has met these requirements. PFR File, Tab 1 at 3. 3
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the appellant’s IRA appeal for lack of
jurisdiction.
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).
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.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.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
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. 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 | Hendy_David_M_CH-1221-20-0151-W-1__Final_Order.pdf | 2024-07-24 | DAVID M. HENDY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-20-0151-W-1, July 24, 2024 | CH-1221-20-0151-W-1 | NP |
870 | https://www.mspb.gov/decisions/nonprecedential/Gregory_Daniel_A_PH-315H-20-0089-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL A. GREGORY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-315H-20-0089-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel A. Gregory , Fort Meade, Maryland, pro se.
Kimberly Karle , Esquire, Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. For the reasons discussed
below, we GRANT the appellant's petition for review, and VACATE the initial
decision, but we DISMISS the appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2On December 2, 2019, the appellant filed the instant appeal challenging the
agency’s decision to terminate him during his probationary period. Initial Appeal
File (IAF), Tab 1. In an acknowledgment order dated December 3, 2019, the
administrative judge informed the appellant of how to establish Board jurisdiction
as a probationary or non-probationary employee and ordered him to file evidence
and argument showing why the appeal should not be dismissed for lack of a
nonfrivolous allegation of jurisdiction. IAF, Tab 2 at 2-5. The administrative
judge further informed the appellant that his failure to respond may result in the
imposition of sanctions. Id. at 1. The appellant did not respond to this order.
¶3After the agency moved to dismiss the appeal for lack of jurisdiction and
moved for sanctions, IAF, Tab 4 at 6-11, Tab 8 at 4-6, the administrative judge
issued a December 26, 2019 Order to Show Cause directing the appellant to show
cause as to why the appeal should not be dismissed for lack of jurisdiction, IAF,
Tab 9 at 1. The order stated that the appellant’s response must be received no
later than January 3, 2020. Id. After the response window lapsed, the
administrative judge issued an initial decision on January 6, 2020, dismissing the
appeal for failure to prosecute. IAF, Tab 10, Initial Decision.
¶4The appellant filed a timely petition for review on January 14, 2020.
Petition for Review (PFR) File, Tab 1. He argues that he was unable to respond
because the orders were issued during the Christmas holiday. Id. at 3. He further
argues that, during this time, he was caring for his wife who had recently been
diagnosed with cancer. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erred in dismissing the appeal for failure to prosecute.
¶5Dismissal for failure to prosecute is a sanction that may be imposed if a
party fails to prosecute or defend an appeal. Leseman v. Department of the Army ,
122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). The imposition of such a2
sanction should be imposed only when a party has failed to exercise basic due
diligence in complying with an order or has exhibited negligence or bad faith in
its efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. An administrative judge
should not resort to the imposition of sanctions unless necessary to serve the ends
of justice. Holland v. Department of Labor , 108 M.S.P.R. 599, ¶ 9 (2008).
Absent a showing of abuse of discretion, the Board will not reverse an
administrative judge’s determination regarding sanctions. Wiggins v. Department
of the Air Force , 113 M.S.P.R. 443, ¶ 11 (2010).
¶6Here, the record does not reflect that the appellant exercised negligence or
bad faith in his efforts to comply. Furthermore, we disagree that the appellant
failed to exercise basic due diligence in complying with the administrative
judge’s orders under the circumstances. First, the appellant was pro se. See Tully
v. Department of Justice , 95 M.S.P.R. 481, ¶ 11 (2004) (stating that dismissal for
failure to prosecute is a drastic sanction that should not be imposed lightly,
especially when the appellant is not represented). Second, as set forth above, the
administrative judge set the response date to the Order to Show Cause between
December 26, 2019, and January 3, 2020—a narrow window falling during the
holiday period. Third, the appellant’s wife was undergoing chemotherapy, which
the appellant explained in his initial appeal and reiterates on review. IAF, Tab 1
at 5; PFR File, Tab 1. Finally, the appellant was provided with only
approximately 1 month to comply from the time the administrative judge first
issued the acknowledgment order to when the initial decision was issued. Cf.
Heckman v. Department of the Interior , 106 M.S.P.R. 210, ¶ 16 (2007) (finding
that the administrative judge did not abuse her discretion by dismissing the
appellant's claims for failure to prosecute when the appellant did not comply with
multiple orders over a period of nearly 2½ months).
¶7The administrative judge justifiably may have been frustrated with the
appellant’s lack of responses to the acknowledgment and show cause orders.
However, the extreme sanction of dismissal for failure to prosecute does not serve3
the ends of justice here. See Tully, 95 M.S.P.R. 481, ¶¶ 10, 12 (vacating an
administrative judge’s dismissal for failure to prosecute because the sanction was
too severe although the pro se appellant had twice failed to file prehearing
submissions and to appear for prehearing conferences). Accordingly, we find that
the administrative judge abused his discretion in dismissing the appeal for failure
to prosecute, and we vacate the initial decision. However, for the reasons set
forth below, we find that remand is not necessary because the Board lacks
jurisdiction over this appeal
The appeal is dismissed for lack of jurisdiction.
¶8The 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). Whether an individual in the
competitive service has the right to appeal an adverse action depends on whether
he is an “employee” under 5 U.S.C. § 7511(a)(1)(A). See Walker v. Department
of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). Title 5 U.S.C. § 7511(a)(1)(A)
defines an “employee” as an individual in the competitive service who (i) is not
serving a probationary or trial period under an initial appointment, or (ii) has
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A). The two prongs
of the statutory definition are distinct and provide alternatives by which an
individual may be found to be an employee with appeal rights. McCormick v.
Department of the Air Force , 307 F.3d 1339, 1342-43 (Fed. Cir. 2002).
Probationary employees in the competitive service who do not satisfy either
definition may nevertheless have the right to appeal a termination to the Board
under 5 C.F.R. §§ 315.805-.806 by showing that the termination was based on
marital status or partisan political reasons, or that the action was procedurally
improper. Tarr v. Department of Veterans Affairs , 115 M.S.P.R. 216, ¶ 10
(2010).4
¶9If the appellant in an adverse action appeal makes a nonfrivolous allegation
of jurisdiction, i.e., an allegation that, if proven, could establish the Board’s
jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by a
preponderance of the evidence. Garcia v. Department of Homeland Security ,
437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). Before dismissing an appeal for
lack of jurisdiction, an administrative judge must provide an appellant with
explicit information on what is required to establish an appealable jurisdictional
issue and an opportunity to meet that burden. Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985).
¶10Here, the appellant indicated in his initial appeal that he was serving a
probationary period and had 6 months of Government service at the time of his
termination. IAF, Tab 1 at 1. In his acknowledgment order, the administrative
judge notified the appellant of the various ways he could establish Board
jurisdiction. IAF, Tab 2. By the time the administrative judge issued the initial
decision more than a month later, the appellant had not submitted any evidence or
argument on the jurisdictional issue. Although we find that the appeal should not
have been dismissed for failure to prosecute, we find that the appellant had notice
of the jurisdictional issues and an opportunity to respond before the record
closed, and therefore we will address whether the appellant made nonfrivolous
allegations of jurisdiction.
¶11According to the appellant’s pleadings and documentary evidence submitted
below, he was appointed to the competitive service in April 2019 and terminated
during his probationary period approximately 6 months later. IAF, Tab 1 at 1, 3,
7-11. Thus, he has not made a nonfrivolous allegation that he was an “employee”
under 5 U.S.C. § 7511(a)(1)(A). Additionally, his termination was based on his
performance during his probationary period, id. at 8, and he has not alleged that
he was terminated “for reasons based in whole or in part on conditions arising
before his appointment.” 5 C.F.R. § 315.805. The appellant also made no
allegation that he was terminated based on his marital status or partisan political5
reasons. 5 C.F.R. § 315.806(b). Therefore, we find that the appellant failed to
nonfrivolously allege that the Board has jurisdiction over his appeal, and we
dismiss the appeal without a hearing.
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 | Gregory_Daniel_A_PH-315H-20-0089-I-1__Final_Order.pdf | 2024-07-24 | DANIEL A. GREGORY v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-315H-20-0089-I-1, July 24, 2024 | PH-315H-20-0089-I-1 | NP |
871 | https://www.mspb.gov/decisions/nonprecedential/Paton_NicholasCH-1221-18-0200-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICHOLAS PATON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-1221-18-0200-W-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Katherine Meng and Katherine Stewart , 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
denied corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the factors set forth under
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), we
AFFIRM the initial decision.
BACKGROUND
Effective May 25, 2014, the appellant received an appointment, which was
not to exceed September 20, 2017, to the excepted service position of a Criminal
Investigator (Special Agent) with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) in Louisville, Kentucky. Initial Appeal File (IAF), Tab 7 at 93,
Tab 35 at 4. By letter dated September 20, 2017, the Special Agent-in-Charge
(SAC) of the Louisville office notified the appellant that the agency would not
convert him to a career position. IAF, Tab 7 at 33-34.
The appellant filed a complaint with the Office of Special Counsel (OSC).
IAF, Tab 1 at 12-25. He alleged that he disclosed to ATF Louisville Division
Counsel in April 2017 that he had refused to follow his supervisor’s order to
surveil and seize the firearm of subject H. Id. at 19, 25. The appellant further
alleged that he disclosed to the Division Counsel in June 2017 that his supervisor
seized a firearm of subject J even after he informed his supervisor that he2
believed that subject J was lawfully allowed to possess the firearm. Id. at 19-20.
The appellant claimed that, in reprisal for his whistleblowing disclosures, the
agency did not convert him to a career position in September 2017. Id. at 21. On
November 30, 2017, OSC informed the appellant that it was terminating its
inquiry into his claims and that he had a right to seek corrective action with the
Board. Id. at 9-10.
The appellant filed an IRA appeal with the Board. IAF, Tab 1. Following
a hearing, the administrative judge issued an initial decision in which she denied
the appellant’s request for corrective action. IAF, Tab 39, Hearing Compact
Disc, Tab 43, Initial Decision (ID). In her initial decision, the administrative
judge reiterated her findings from a prehearing order that the appellant failed to
nonfrivolously allege that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(D) when he refused to follow his supervisor’s order to surveil
subject H in early 2017, or that he made a protected disclosure of a violation of
law, rule, or regulation under 5 U.S.C. § 2302(b)(8) when he reported that he was
ordered to surveil subject H in April 2017 (the order he did not carry out). ID
at 11, 13-14; IAF, Tab 26 at 2-5. The administrative judge found, however, that
the appellant nonfrivolously alleged that he made a protected disclosure of a
violation of law, rule, or regulation under 5 U.S.C. § 2302(b)(8) when he reported
his supervisor’s decision to seize subject J’s gun in June 2017. ID at 15-16; IAF,
Tab 26 at 4-5.
On the merits, the administrative judge determined that the appellant
established a prima facie case of whistleblower reprisal. ID at 17-20.
Specifically, the administrative judge found that the appellant proved by
preponderant evidence that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) because he reasonably believed his supervisor’s decision to seize
subject J’s firearm constituted a violation of law, rule, or regulation. ID at 17-18.
The administrative judge further found that the appellant’s protected disclosure
was a contributing factor in the agency’s decision not to convert him to a career3
position. ID at 18 -20. She concluded, however, that the agency proved by clear
and convincing evidence that it would not have converted the appellant to a
career position even absent his protected disclosure. ID at 20-29.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He argues that the administrative judge erred in
finding that the agency met its clear and convincing evidence burden.2 Id. The
agency has responded in opposition to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act, the Board has
jurisdiction over an IRA appeal if the appellant has exhausted his administrative
remedies before OSC and makes nonfrivolous allegations of the following: (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
protected disclosure or activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once he
establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the
merits of his claim at which he must prove a prima facie case, i.e., that he made a
protected disclosure or engaged in protected activity that was a contributing
factor in a personnel action taken against him, by preponderant evidence.
5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R.
335, ¶ 7 (2015). If the appellant makes out a prima facie case, the agency is
given an opportunity to demonstrate, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
The parties do not challenge, and we discern no reason to disturb, the
administrative judge’s finding that, after establishing jurisdiction, the appellant
2 The appellant does not challenge the administrative judge’s findings regarding the
April 2017 activity and disclosure. 4
made a prima facie case of whistleblower retaliation. ID at 15-20. The issue
before us is whether the agency has proven, by clear and convincing evidence,
that it would have taken the same action in the absence of the June 2017 protected
disclosure. In determining whether an agency has met this burden, the Board
generally considers the following factors: (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Carr,
185 F.3d at 1323. The Board does not view these factors as discrete elements,
each of which the agency must prove by clear and convincing evidence, but rather
weighs these factors together to determine whether the evidence is clear and
convincing as a whole. Alarid v. Department of the Army, 122 M.S.P.R. 600,
¶ 14 (2015). Our reviewing court has made clear that evidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion. Whitmore v. Department of Labor, 680 F.3d 1353,
1368 (Fed. Cir. 2012).
As noted, the administrative judge found that the agency proved by clear
and convincing evidence that it would not have converted the appellant to a
career position even in the absence of his protected disclosure. ID at 20-29. On
review, the appellant challenges the administrative judge’s findings on each Carr
factor. PFR File, Tab 1 at 8-21. He alleges that the agency’s evidence in support
of its non-conversion decision was not strong, that the agency officials involved
in the decision had a motive to retaliate against him, and that the absence of
evidence concerning Carr factor 3 weighs against the agency. Id.
Regarding Carr factor 1, the administrative judge found that the agency
had very strong evidence in support of its decision not to convert the appellant to
a career position. ID at 21-25. We agree. As the administrative judge noted, the5
SAC considered that the appellant had been suspended for 3 days for failure to
follow instructions (as to disposal of narcotics evidence); he was the subject of a
number of complaints from the U.S. Attorney’s office (due to his failure to timely
provide case materials); he had multiple issues related to his judgment and
behavior that were reported by his on-the-job training (OJT) instructors and his
supervisor in his Quarterly Suitability Standards Evaluations and in other record
evidence; he violated ATF procedures in a June 2017 vehicle recovery operation;
and he engaged in unprofessional behavior when he requested a motorcycle for
use in an undercover capacity from an Acting Special Agent-in-Charge to
circumvent his supervisor. ID at 21-25; IAF, Tab 7 at 28-30, 48-50, 54-56,
60-68, 84-87, Tab 22 at 37-38, 47, Hearing Transcript (HT) at 196-98 (testimony
of SAC). The SAC testified that, based on these incidents and the concerns of the
appellant’s OJT instructors and his supervisor, he did not feel comfortable having
the appellant operate as an independent Criminal Investigator (Special Agent).
HT at 160 (testimony of SAC).
The appellant argues the administrative judge did not consider that the SAC
approved his promotion to grade 12 in May 2017 (at which time he was aware of
the appellant’s performance deficiencies in his monthly progress reports) and that
his supervisor recommended to the SAC that he be “retained as a Special Agent.”
PFR File, Tab 1 at 8-11. He further argues that his status as a “fully successful
performer” undermines the SAC’s credibility regarding the deficiencies that were
cited in support of the non-conversion action. Id. According to the appellant, his
rating as “acceptable” in teamwork in the Quarterly Suitability Standards
Evaluations contradicts the SAC’s statement in his declaration that the appellant
was not a “team player.” Id. at 11.
Contrary to the appellant’s allegations, the administrative judge considered
this information in the initial decision. ID at 21-25. The administrative judge
credited the SAC’s declaration under penalty of perjury that the appellant
demonstrated technical competence but that he also challenged or disregarded6
ATF policies, procedures, and enforcement priorities, was unresponsive and
insubordinate to senior Special Agents, and disrespected the chain of command.
ID at 21-25; IAF, Tab 7 at 28. The administrative judge also credited the SAC’s
testimony that it is typical for a trainee’s supervisor to prepare for his review and
signature an unsigned memorandum with the recommendation that a trainee be
retained as a Special Agent. ID at 25; HT at 124-27 (testimony of SAC). The
SAC testified that he did not sign this memorandum, and the appellant
acknowledged that he never received a signed copy. HT at 83-84 (testimony of
the appellant), 142, 192 (testimony of SAC). The administrative judge noted the
SAC testified that the appellant’s OJT instructors had a habit of underreporting
the frequency and severity of the appellant’s noncompliance. ID at 23; HT
at 148-49 (testimony of SAC). The Board must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not set forth sufficiently
sound reasons for disturbing the administrative judge’s decision to credit the
SAC’s testimony.
Regarding Carr factor 2, the administrative judge found that there was
little evidence of retaliatory motive on the part of the agency officials who were
involved with the non-conversion decision. ID at 26. On review, the appellant
argues that his supervisor had a motive to retaliate against him because he
disclosed the purportedly unlawful seizure of subject J’s firearm. PFR File, Tab 1
at 18. He indicates that, based on court documents and conversations with
attorneys and a probation and parole supervisor, he determined that subject J had
completed a diversion program that expunged his felony conviction and permitted
him to possess a firearm. Id. at 17. The SAC testified that the appellant’s
supervisor acted consistently with agency policy and that he did not improperly7
seize subject J’s firearm. HT at 208 (testimony of SAC). As the administrative
judge noted, however, the record is unclear as to whether subject J had completed
the diversion program at the time that his firearm was seized; it does not contain
the date subject J completed the diversion program or the basis for the agency’s
determination that he satisfied the requirements for such a program under
Kentucky law. ID at 27. Nonetheless, we agree with the administrative judge
that there is no basis upon which to find that ATF policy prior to the legal
guidance issued by Division Counsel was unlawful or that his supervisor
unlawfully applied it in the case of subject J. ID at 28. These facts support a
finding that there was not a significant motivation to retaliate against the
appellant for his disclosure.
To the extent the appellant is alleging that his supervisor had some motive
to retaliate against him because he was named in the appellant’s disclosure, the
administrative judge noted that, although critical accusations can be evidence of
retaliatory motive, the appellant did not show that he complained about egregious
misconduct by his supervisor but merely that he had not persuaded his supervisor
that the individual with the felony conviction had it expunged through completion
of the diversion program. ID at 27. The administrative judge also noted there
was no indication in the record that his supervisor was criticized by management
for his role in seizing subject J’s firearm. ID at 27-28; HT at 181 (testimony of
SAC). Nevertheless, we recognize that the appellant’s criticisms of his
supervisor reflected on both his supervisor and the SAC in their capacities as
managers and employees, which is sufficient to establish some retaliatory motive.
See Whitmore, 680 F.3d at 1370-71 (stating that the appellant’s criticisms cast the
agency, and by implication all of the responsible officials, in a highly critical
light by calling into question the propriety and honesty of their official conduct);
Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 23 (2010) (finding
that comments generally critical of the agency’s leadership would reflect poorly
on officials responsible for monitoring the performance of the field staff and8
making sure that agency regulations are carried out correctly and consistently).
To the extent that the administrative judge failed to consider the degree to which
such criticism could create a retaliatory motive, we modify the initial decision,
but still agree with the administrative judge that any retaliatory motive was not
strong. ID at 28.
Additionally, the appellant argues that retaliatory motive can be inferred
from the SAC’s articulated reasons not to convert him to a career position
because the majority of the incidents on which the decision was based occurred
prior to his June 2017 disclosure but were not a concern until after the fact. PFR
File, Tab 1 at 15-19. By the appellant’s own admission, however, the SAC
informed him that he made the decision not to convert him because he had seen a
pattern of behavior in which he sought “a second opinion when told to do
something by a supervisor.” HT at 43 (testimony of the appellant); IAF, Tab 23
at 11. The administrative judge construed this comment to refer to the appellant’s
efforts to overturn his supervisor’s decision on his request to use a motorcycle
(rather than his disclosure to the Division Counsel to whom Special Agents are
expected to raise questions about whether an individual is permitted to possess a
firearm). ID at 26-27. In so finding, the administrative judge credited the SAC’s
testimony that the appellant’s situation was “not a unique matter” and that other
agents were also trying to interpret the proper protocol for firearm retrieval cases.
ID at 27; HT at 214 (testimony of SAC). As the administrative judge noted, the
appellant acknowledged that the SAC was receptive to his concerns regarding his
supervisor’s decision to seize subject J’s firearm and even suggested that
guidance be issued to assist employees with dismissal and diversion in firearm
retrieval cases. ID at 27-28; HT at 109-110 (testimony of SAC). Again, this
supports a finding that there was not a significant motive to retaliate.
Regarding Carr factor 3, the administrative judge found that the record is
devoid of evidence that the agency took similar actions against employees who9
are not whistleblowers but otherwise similarly situated to the appellant.3
ID at 28. Thus, she deemed this factor to be neutral. Id.
Our reviewing court has held that “the absence of any evidence relating to
Carr factor 3 can effectively remove that factor from the analysis,” but that the
failure to produce evidence “may be at the agency’s peril,” and may cause the
agency to fail to meet its clear and convincing burden. Miller v. Department of
Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016). Stated differently, because it is
the agency that has the burden of proof, when an agency fails to introduce
relevant comparator evidence, the third Carr factor cannot weigh in favor of the
agency. See 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). Our reviewing court has also held that, in some circumstances,
an agency’s failure to present evidence regarding how similarly situated
non-whistleblowers are treated “tends to cut slightly against the Government.”
Miller, 842 F.3d at 1262. Even if we were to find that Carr factor 3 cuts slightly
against the agency, based on the strength of the agency evidence in support of
Carr factor 1, we would still find that the agency met its clear and convincing
burden. Therefore, we modify the initial decision to include this analysis.
After carefully considering the Carr factors, we conclude that the strength
of the agency’s evidence supporting not converting the appellant to a career
position outweighs the other two factors. See McCarthy v. International
Boundary & Water Commission, 116 M.S.P.R. 594, ¶¶ 64-67 (2011) (finding that
the strength of the agency’s evidence supporting its personnel action outweighed
the other Carr factors), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). As discussed
3 In challenging the administrative judge’s finding regarding Carr factor 3, the
appellant alleges on review that the agency did not discipline two Special Agents who,
according to the appellant, were involved in an undercover operation in June 2017
without preparing the requisite operational plan. PFR File, Tab 1 at 19-20. The
appellant does not, however, allege that these individuals were serving temporary
appointments at the time of the purported incident. Thus, the appellant and the two
Special Agents were not similarly situated and therefore the appellant’s contention does
not demonstrate error in the administrative judge’s Carr factor 3 analysis. 10
above, the agency decided not to convert the appellant to a career position based
on the concerns of his supervisor and OJT instructors, his prior discipline, and
additional matters that raised concerns about his judgment during his temporary
appointment. Because the agency has shown by clear and convincing evidence
that it would not have converted the appellant in the absence of his protected
disclosure, we agree with the administrative judge that corrective action is not
warranted in this case.
Accordingly, we affirm the initial decision, as modified herein.
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.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you12
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 14
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Paton_NicholasCH-1221-18-0200-W-1__Final_Order.pdf | 2024-07-24 | NICHOLAS PATON v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-1221-18-0200-W-1, July 24, 2024 | CH-1221-18-0200-W-1 | NP |
872 | https://www.mspb.gov/decisions/nonprecedential/Baptiste_ClaudeAT-0752-22-0552-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLAUDE BAPTISTE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-22-0552-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse Lee Kelly, Jr. , Esquire, Atlanta, Georgia, for the appellant.
Adam Cornette , Esquire, and Marie Kim , Esquire, Miami, 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
sustained his removal. In his petition, the appellant reasserts that the agency
engaged in a harmful procedural error by interviewing him about his alleged
misconduct without first giving him the opportunity to have a union
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
representative present. Petition for Review (PFR) File, Tab 1 at 5-9.
Additionally, he argues that the administrative judge exhibited bias during the
proceedings below. Id. at 9-10. In his reply brief, the appellant separately
suggests that the agency or administrative judge erred in relying on certain past
discipline when deciding upon an appropriate penalty. PFR File, Tab 4 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 and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 Regarding the appellant’s argument that the administrative judge was biased, his
arguments do not overcome the presumption of honesty and integrity that accompanies
Board administrative judges, and the administrative judge’s conduct during the hearing
does not demonstrate the deep-seated favoritism or antagonism that would make fair
judgment impossible. See Maloney v. Executive Office of the President , 2022 MSPB
26, ¶ 38. Regarding the appellant’s argument raised for the first time in his reply to the
agency’s response to the petition for review, the Board generally will not consider an
argument raised for the first time in the reply to a response to a petition for review.
Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 22 n.3 (2016).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 | Baptiste_ClaudeAT-0752-22-0552-I-1__Final_Order.pdf | 2024-07-24 | CLAUDE BAPTISTE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-22-0552-I-1, July 24, 2024 | AT-0752-22-0552-I-1 | NP |
873 | https://www.mspb.gov/decisions/nonprecedential/Hickey_Brendan_PH-1221-15-0013-M-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENDAN HICKEY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-1221-15-0013-M-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nicholas Woodfield , Esquire, Washington, D.C., for the appellant.
Carolyn D. Jones , Esquire, Williston, Vermont, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The agency has filed a petition for review of the remand addendum initial
decision, which granted, in part, the appellant’s motion for attorney fees. For the
reasons discussed below, we GRANT the agency’s petition for review. Except 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).
expressly MODIFIED by this Final Order to recalculate the total amount awarded
in attorney fees, we AFFIRM the initial decision.
BACKGROUND
The procedural history of this appeal involves several prior decisions. In
May 2017, the Board issued an initial decision in the appellant’s individual right
of action (IRA) appeal, granting corrective action, in part. Hickey v. Department
of Homeland Security , MSPB Docket No. PH -1221-15-0013-W-2, Initial Decision
(May 4, 2017). After neither party sought review of the initial decision, it
became the Board’s final decision. See 5 C.F.R. § 1201.113 (setting forth that an
initial decision generally will become final 35 days after issuance if neither party
files a petition for review).
The appellant subsequently filed a motion for attorney fees and costs
related to his representation by two law firms: Corso Law and The Employment
Law Group (TELG). Hickey v. Department of Homeland Security , MSPB Docket
No. PH-1221-15-0013-A-1, Attorney Fee File (A-1 AFF), Tab 1. The
administrative judge granted the appellant’s motion in part, awarding the
appellant $109,585 in attorney fees—$7,650 for Corso Law’s services and
$101,935 for TELG’s services—and $12,547.47 for costs incurred by TELG.
Hickey v. Department of Homeland Security , MSPB Docket No.
PH-1221-15-0013-A-1, Addendum Initial Decision (A-1 AID) at 9-10, 19-20
(Nov. 30, 2017); A -1 AFF, Tab 9. Similarly, the appellant filed a motion for
consequential and compensatory damages in connection with his IRA appeal.
Hickey v. Department of Homeland Security , MSPB Docket No.
PH-1221-15-0013-P-1, Appeal File (P -1 AF), Tab 1. The administrative judge
subsequently granted the motion for compensatory damages in part, awarding the
appellant $10,000 in such damages. Hickey v. Department of Homeland Security ,
MSPB Docket No. PH-1221-15-0013-P-1, Addendum Initial Decision (P-1 AID)
at 8-14 (Jan. 29, 2018); P-1 AF, Tab 9. He denied the appellant’s request for2
consequential damages. P-1 AID at 6-7. The appellant did not seek review in
either the attorney fees case or the compensatory damages case, and thus they
became the Board’s final decisions. See 5 C.F.R. § 1201.113.
The appellant subsequently appealed those decisions to the U.S. Court of
Appeals for the Federal Circuit, challenging the calculation of his attorney fees,
the amount of compensatory damages awarded, and the denial of his motion for
consequential damages. Hickey v. Department of Homeland Security , 766 F.
App’x 970, 973-74 (Fed. Cir. 2019). The court affirmed the Board’s findings on
compensatory and consequential damages, but it vacated the attorney fees
determination and remanded to the Board for further proceedings. Id. at 979.
Specifically, the court found that the Board abused its discretion in calculating
the attorney fees for the work of TELG because it applied what it determined to
be reasonable hourly rates for Maryland attorneys, a jurisdiction unrelated to the
case. Id. at 975-76. The court observed that TELG had a retainer agreement with
the appellant, and the firm practiced and was located in Washington, D.C. Id.
After the court remanded the case to the Board, the Board remanded the case to
the Northeastern Regional Office. Hickey v. Department of Homeland Security ,
MSPB Docket No. PH-1221-15-0013-M-1, Appeal File (M-1 AF), Tab 2.
The administrative judge issued a remand addendum initial decision
modifying the amount awarded to the appellant. M-1 AF, Tab 6, Addendum
Initial Decision (M-1 AID) at 1-2. Specifically, the administrative judge still
awarded $7,650 in attorney fees for Corso Law’s services and $12,547.47 for
costs incurred by TELG, but he increased the award of attorney fees for TELG’s
services to $119,900. M-1 AID at 20.
The agency has filed a petition for review, arguing that the administrative
judge erroneously computed the total amount due to TELG. Petition for Review
(PFR) File, Tab 1 at 6-7, Tabs 5-6. The appellant has responded to the petition
for review. PFR File, Tab 3. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The parties do not challenge the decision of the Federal Circuit as it
concerns costs, attorney fees associated with Corso Law, compensatory damages,
and consequential damages. M-1 AF, Tab 1. As such, those matters are not at
issue here.2 Rather, the only issue before us here is the amount of attorney fees
awarded for TELG’s work on the appellant’s case. After reviewing the party’s
submissions and disallowing various entries, the administrative judge approved
$119,900 in attorney fees as billed by TELG. M-1 AID at 11-19. Neither party
challenges the total hours allowed, nor the hourly rate applied. Rather, the
agency argues that the administrative judge committed a mathematical error in
calculating the total amount of attorney fees. PFR File, Tab 1 at 6-7. Per the
agency, the total amount owed for TELG’s billed hours is $112,900. Id. The
appellant on review does not oppose the agency’s requested modification of the
fee award to TELG, and we agree with the parties. PFR File, Tab 3 at 4.
When the prevailing party did not obtain all the relief requested, as here,
the most useful starting point for determining reasonable attorney fees is to
calculate the lodestar by multiplying the hours reasonably spent on the litigation
by a reasonable hourly rate. Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662,
¶ 10 (2011) (citing Hensley v. Eckerhart , 461 U.S. 424, 433 (1983)); see Guy v.
Department of the Army , 118 M.S.P.R. 45, ¶¶ 5, 8 (2012) (finding the lodestar
appropriate for calculating attorney fees in an IRA appeal). The initial
calculation should exclude hours for which the prevailing party failed to provide
adequate documentation, and also should exclude hours that were not reasonably
expended. Driscoll, 116 M.S.P.R. 662, ¶ 10. The fee agreed to by the appellant
2 Although not raised by the parties on review, we clarify the administrative judge’s
statement in the remand addendum initial decision that the appellant’s request for
attorney fees for work related to the appellant’s petition for compensatory and
consequential damages was “premature.” M-1 AID at 18. Rather, those fees were
addressed in a different addendum initial decision related to a separate fee petition.
Hickey v. Department of Homeland Security , MSPB Docket No. PH-1221-15-0013-A-2,
Addendum Initial Decision (July 5, 2018). Neither party sought review of that decision,
and it is now final. See 5 C.F.R. § 1201.113.4
and the attorney is presumed to be the maximum reasonable fee that may be
awarded. Krape v. Department of Defense , 97 M.S.P.R. 430, ¶ 12 (2004).
The administrative judge properly used the lodestar method to calculate the
reasonable attorney fees. M-1 AID at 4-5. He found that the fee agreement
executed between TELG and the appellant provided, among other things, an
hourly rate of $490 for principals and of counsel, and $145 for the firm’s law
clerks and investigators. M-1 AID at 11. The administrative judge found that
these amounts represented the reasonable hourly fees for TELG’s work on the
case. M-1 AID at 12-13. The parties do not challenge this finding on review, and
we discern no reason to disturb it.
Regarding the total hours worked by individuals at TELG, the
administrative judge did not set forth the calculated total hours, but rather, he
disallowed some of the specific hours claimed by the appellant. M-1 AID
at 13-19. The agency on review provided highlighted copies of the allowed hours
claimed for the two principal attorneys from TELG who worked on the
appellant’s case. PFR File, Tabs 5-6. As set forth by the agency, one individual
worked 181.2 allowed hours, and the other worked 4.2 allowed hours. PFR File,
Tab 1 at 7, Tabs 5-6. These individuals, billed at the hourly rate of $490 as set
forth in the fee agreement, accounted for $90,846 in attorney fees. PFR File,
Tab 1 at 7, Tabs 5-6. Moreover, the administrative judge did not disturb his prior
computation of the amount to be paid for the work of TELG’s law clerks.
M-1 AID at 13-19; A-1 AID at 12-18. Per the agency, the claimed hours allowed
by the administrative judge for law clerk work totaled 152.1, amounting to
$22,054 in attorney fees.3 PFR File, Tab 1 at 7, 8 n.3. Thus, the total attorney
fees awarded calculates to $112,900. The administrative judge’s calculated total
3 The agency notes on review that the total clerk hours allowed (152.1) multiplied by
the retainer fee agreement ($145) actually computes to $22,054.50, or $0.50 more than
the administrative judge computed. PFR File, Tab 1 at 8 n.3. However, the agency
suggests that the administrative judge rounded down to $22,054. Neither party
challenges the $0.50 difference on review. Id. We therefore decline to disturb it.5
of $119,900 is incorrect, likely due to a mathematical error. As previously noted,
the appellant does not challenge the agency’s calculation of the attorney fees
awarded. PFR File, Tab 3 at 4. Accordingly, we modify the initial decision to
reflect that the attorney fees awarded based on TELG’s billed hours is $112,900.
ORDER
We ORDER the agency to pay the appellant $120,550 in attorney fees and
$12,547.47 in costs. The agency must complete this action no later than 20 days
after the date of this decision. Title 5 of the United States Code,
section 1204(a)(2) (5 U.S.C. § 1204(a)(2) ).
We also 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. We ORDER the appellant to provide all
necessary information that the agency requests to help it 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).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal, if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. See 5 C.F.R. § 1201.182(a).
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular7
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 8
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of9
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 | Hickey_Brendan_PH-1221-15-0013-M-1__Final_Order.pdf | 2024-07-24 | BRENDAN HICKEY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-1221-15-0013-M-1, July 24, 2024 | PH-1221-15-0013-M-1 | NP |
874 | https://www.mspb.gov/decisions/nonprecedential/Armstrong_Jason_A_CH-1221-22-0462-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON ALLAN ARMSTRONG,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-1221-22-0462-W-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason Allan Armstrong , Belleville, Michigan, pro se.
Thomas Schramm , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶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 argues that the administrative judge did not
consider his claim that the agency perceived him as a whistleblower due to 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).
February 26, 2021 Office of Special Counsel (OSC) complaint. Petition for
Review (PFR) File, Tab 1.2 Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
address the appellant’s contention that the agency perceived him as a
whistleblower, we AFFIRM the initial decision.
¶2We have considered the appellant’s claim that the agency perceived him as
a whistleblower. However, he has not proven that he exhausted this claim with
OSC. Indeed, his July 16, 2022 OSC complaint and OSC’s September 13, 2022
letter advising him of his right to file a Board appeal do not mention or reference
his earlier February 26, 2021 OSC complaint or his allegation that the agency
perceived him as a whistleblower. Initial Appeal File, Tab 4 at 42-56. Because
the appellant did not prove by preponderant evidence that he exhausted this claim
with OSC, see Chambers v. Department of Homeland Security , 2022 MSPB 8,
2 The appellant also attaches numerous documents to his petition for review, including
his September 16, 2022 declaration made under penalty of perjury, the proposal and
decision letters relating to an indefinite suspension, his discovery responses in the
indefinite suspension appeal, the agency’s July 8, 2022 letter, which returned him to
administrative duties following the dismissal of the criminal matter, his July 16, 2022
OSC complaint, and OSC’s September 13, 2022 letter. PFR File, Tab 1 at 7-59.
However, this documentation is already in the record and is not new evidence . See
Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980 ). 2
¶ 11, we need not decide whether he made a nonfrivolous allegation that the
agency perceived him as a whistleblower or whether the agency’s perception was
a contributing factor in any personnel action, see King v. Department of the Army ,
116 M.S.P.R. 689, ¶ 9 (2011).
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Armstrong_Jason_A_CH-1221-22-0462-W-1__Final_Order.pdf | 2024-07-24 | JASON ALLAN ARMSTRONG v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-1221-22-0462-W-1, July 24, 2024 | CH-1221-22-0462-W-1 | NP |
875 | https://www.mspb.gov/decisions/nonprecedential/Ung_SokrithySF-0752-23-0121-I-1__2846533.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOKRITHY UNG,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-23-0121-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Tierney , Esquire, Norwalk, Connecticut, for the appellant.
Arnulfo Urias , 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
dismissed her involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues the administrative judge was mistaken as to the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
issues in dispute in the appeal and erred in not affording her a hearing.
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 | Ung_SokrithySF-0752-23-0121-I-1__2846533.pdf | 2024-07-24 | SOKRITHY UNG v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-23-0121-I-1, July 24, 2024 | SF-0752-23-0121-I-1 | NP |
876 | https://www.mspb.gov/decisions/nonprecedential/Nikkila_Sean_C_SF-4324-23-0082-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN C. NIKKILA,
Appellant,
v.
DEPARTMENT OF ENERGY,
Agency.DOCKET NUMBER
SF-4324-23-0082-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean Christopher Nikkila , Sherwood, Oregon, pro se.
Sally Carter , 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 and the agency has filed a
cross petition for review of the initial decision, which dismissed the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301-4335) (USERRA) a ppeal for lack of jurisdiction.
On petition for review, the appellant argues that he made a nonfrivolous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
allegation of Board jurisdiction, he asserts that the administrative judge made an
admission that is a basis for reopening his prior appeal, and he makes some
general allegations regarding the scope of the civil service laws to remedy his
perceived wrongs. Petition for Review (PFR) File, Tab 1. 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). 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 and AFFIRM the initial decision, which is now
the Board’s final decision. 5 C.F.R. § 1201.113(b).
We have considered the appellant’s argument that he satisfied his
jurisdictional burden. However, for the reasons described in the initial decision,
we agree with the administrative judge that the appellant failed to make a
nonfrivolous allegation that the performance of duty or obligation to perform duty
in the uniformed service was a substantial or motivating factor in the 2012
nonselection. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 11
(2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320,
1325-26 (Fed. Cir. 2017) .
We have also considered the appellant’s assertion that the administrative
judge admitted that he “incorrectly accepted the [Department of Labor]
characterization that this is simply a [Veterans Employment Opportunities Act of2
1998 (VEOA)] complaint and made the decision to deny based on the statutory
60-day limit.” PFR File, Tab 1 at 7. The appellant mischaracterizes the
administrative judge’s statement in the initial decision. Rather, the quoted
language from the initial decision was excerpted from the appellant’s petition for
review in his prior VEOA appeal.2 Initial Appeal File (IAF), Tab 7 at 4; see
Nikkila v. Department of Energy , MSPB Docket No. SF-3330-17-0016-I-1,
Petition for Review File, Tab 1 at 8. Therefore, this argument does not warrant a
different outcome, and we are not persuaded that there is any basis upon which to
reconsider the Board’s final decision in the VEOA appeal.
The appellant also states that he “would welcome [B]oard review of the
entirety of [his] case to better address civil service redress laws as they apply.”
PFR File, Tab 1 at 8. It appears that the appellant is arguing that available
avenues of redress are insufficient to address the scope of discrimination by the
agency, and he is asking the Board to review his case to determine what, if any,
other civil service laws apply.3 However, the Board lacks jurisdiction to review
wholesale the appellant’s 2012 nonselection. See, e.g., Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (stating that the Board’s
jurisdiction is not plenary; it is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation); Becker v. Department of Veterans
Affairs, 107 M.S.P.R. 327, ¶ 5 (2007) (explaining that the Board typically lacks
direct jurisdiction under 5 U.S.C. § 7512 over a nonselection for a position, but
an appellant may appeal a nonselection by other statutory means, including
VEOA, USERRA, or through an individual right of action appeal) .
Because we agree with the administrative judge that the Board lacks
jurisdiction over the USERRA appeal, we need not address the agency’s
2 In Nikkila v. Department of Energy , MSPB Docket No. SF-3330-17-0016-I-1, Final
Order, ¶¶ 11-14 (Nov. 21, 2022), the Board affirmed the administrative judge’s decision
to deny corrective action in his VEOA appeal.
3 Here, too, the appellant mischaracterizes the administrative judge’s statements from
the initial decision. PFR File, Tab 1 at 7-8; IAF, Tab 7 at 5. 3
argument, made in its cross petition for review, that the appeal is precluded by
laches.
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.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.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. 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 | Nikkila_Sean_C_SF-4324-23-0082-I-1__Final_Order.pdf | 2024-07-24 | SEAN C. NIKKILA v. DEPARTMENT OF ENERGY, MSPB Docket No. SF-4324-23-0082-I-1, July 24, 2024 | SF-4324-23-0082-I-1 | NP |
877 | https://www.mspb.gov/decisions/nonprecedential/Patel_MonalDC-3443-23-0304-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONAL PATEL,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3443-23-0304-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Monal Patel , Washington, D.C, pro se.
Allen Brooks , Esquire, Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the agency’s decision to rescind its
offer of employment as a negative suitability determination. On petition for
review, the appellant argues that the administrative judge’s finding that he was
not subjected to a negative suitability determination was based on 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).
facts, namely, that he was employed by a Government contractor. 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 agree with the administrative judge that the appellant did not make a
nonfrivolous allegation of Board jurisdiction because there is no indication that
the agency subjected him to anything other than a nonselection for a specific
position. The Board’s jurisdiction is not plenary; it is limited to those matters
over which it has been given jurisdiction by law, rule, or regulation . Maddox v.
Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, an
unsuccessful candidate for a Federal civil service position has no right to appeal
his nonselection. Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 6 (2009);
see Ricci v. Merit Systems Protection Board , 953 F.3d 753, 757 (Fed. Cir. 2020)
(finding that the agency’s decision to rescind its offer of employment for a
specific position was not a suitability action that could be appealed to the Board) .
Although the Board has jurisdiction over certain matters involving suitability for
Federal employment pursuant to the Office of Personnel Management regulations,
as explained in the initial decision, only “suitability actions”—cancellations of2
eligibility, removals, cancellations of reinstatement eligibility, and debarment—
may be appealed to the Board. Initial Appeal File, Tab 10, Initial Decision (ID)
at 3 (citing Upshaw v. Consumer Product Safety Commission , 111 M.S.P.R. 236,
¶ 8 (2009); 5 C.F.R. § 731.203(a); 5 C.F.R. § 731.501(a)). Cancellation of
eligibility or a nonselection for a specific position is not a suitability action even
if it is based on the criteria for making a suitability determination under 5 C.F.R.
§ 731.202. ID at 3 (citing Upshaw, 111 M.S.P.R. 236, ¶ 8; 5 C.F.R.
§ 731.203(b)). Furthermore, while the Board has limited jurisdiction over an
adverse action taken by an agency based on a security clearance determination,
the denial of a security clearance is not itself an appealable adverse action.
Department of the Navy v. Egan , 484 U.S. 518, 529 -32 (1988).
We recognize that the administrative judge did not explicitly notify the
appellant below of what he must do to establish an appealable issue in a
suitability appeal; however, we find that the initial decision, combined with the
agency’s pleadings, provided sufficient notice to cure the deficiency. See
Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 -44 (Fed. Cir.
1985) (finding that an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue); Scott v. Department of
Justice, 105 M.S.P.R. 482, ¶ 6 (2007) (finding that an administrative judge’s
failure to provide an appellant with proper Burgess notice can be cured if the
agency’s pleadings contain the notice that was lacking in the acknowledgment
order, or if the initial decision puts the appellant on notice of what he must do to
establish jurisdiction, thus affording him the opportunity to meet his
jurisdictional burden in the petition for review). Because the appellant
nevertheless did not nonfrivolously allege that the agency subjected him to a
suitability action, we also find that the alleged factual error regarding his
employment with a Government contractor does not warrant a different outcome
in this matter. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984) (stating that an adjudicatory error that is not prejudicial to a party’s3
substantive rights provides no basis for reversal of an initial decision).
Accordingly, we affirm the administrative judge’s finding that the Board lacks
jurisdiction over this appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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 | Patel_MonalDC-3443-23-0304-I-1__Final_Order.pdf | 2024-07-24 | MONAL PATEL v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-23-0304-I-1, July 24, 2024 | DC-3443-23-0304-I-1 | NP |
878 | https://www.mspb.gov/decisions/nonprecedential/Sultana_NargisDC-0752-20-0104-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NARGIS SULTANA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-20-0104-I-1
DATE: July 24, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nargis Sultana , Cary, North Carolina, pro se.
Jennifer Dieterle , Esquire, and William Horrigan , Esquire, Alexandria,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action suspending her for 30 days. For the reasons set forth
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).
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The agency issued a notice of proposed removal charging the appellant, a
Patient Examiner, with 18 specifications of improper conduct. Initial Appeal File
(IAF), Tab 9 at 97-99. The deciding official sustained all the specifications and
the charge, but he mitigated the penalty to a 30-day suspension. Id. at 28.
The appellant filed a Board appeal of her suspension. IAF, Tab 1. She did
not request a hearing. Id. at 2. In her March 30, 2020 initial decision, the
administrative judge sustained the charge, found that the penalty promoted the
efficiency of the service and was reasonable, and that the appellant failed to
establish her affirmative defense . IAF, Tab 23, Initial Decision (ID) at 6-19.
Accordingly, she affirmed the agency’s action. ID at 19. In the initial decision,
the administrative judge specifically stated that the initial decision would become
final on May 4, 2020, unless a petition for review was filed by that date. Id.
The appellant filed a May 6, 2020 petition for review. Petition for Review
(PFR) File, Tab 1. Among other things, the Clerk of the Board informed the
appellant that her petition for review of the March 30, 2020 initial decision was
untimely filed because it was not received in the Clerk’s office or postmarked on
or before May 4, 2020. PFR File, Tab 2 at 1. The Clerk explained that the
Board’s regulations required the appellant to file a motion to accept the filing as
timely and/or waive the time limit for good cause, on or before May 23, 2020. Id.
at 1-2. In its response to the petition for review, the agency contended that the
appellant’s petition for review should be dismissed as untimely filed without
good cause shown for the delay. PFR File, Tab 3 at 4, 7-10. The appellant filed a
reply to the agency’s response, including the required motion to accept the filing
as timely and/or to waive the time limit, on June 8, 2020. PFR File, Tab 4. 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 party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within 30
days after the party received the initial decision. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e).
The initial decision informed the appellant that May 4, 2020 was the last
day on which she could file a petition for review with the Board. ID at 19. The
appellant filed her petition for review 2 days later, on May 6, 2020. PFR File,
Tab 1. The Clerk of the Board subsequently informed the appellant that her
petition for review was untimely filed and instructed her to submit evidence and
argument showing that the petition for review was timely filed or that good cause
existed for the delay in filing. PFR File, Tab 2 at 1-2.
The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To
determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and the party’s showing of
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.; 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). To establish that an untimely filing
was the result of an illness, the appellant must: (1) identify the time period during
which she suffered from the illness; (2) submit medical evidence showing that she3
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). The Clerk’s
notice informed the appellant of these requirements. PFR File, Tab 2 at 7 n.1.
The appellant does not allege that she failed to receive the initial decision
or that she received it more than 5 days after it was issued She asserted in her
petition for review that she was unable to timely file her petition for review
because of a family emergency, i.e., her 5- year-old daughter had been sick with
high fever and cold. PFR File, Tab 1 at 4. With her reply to the agency’s
response to her petition for review, the appellant included the Motion to Accept
Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit
that the Clerk of the Board instructed her to file. PFR File, Tab 4 at 12-13. She
reiterates that her daughter had been sick, and had a fever, but she does not
identify when that occurred, or provide any further details concerning her
daughter’s illness. PFR File, Tab 4 at 12. She also claims that her 75-year-old
father had been admitted to the emergency room (ER). Id. She states that she
“was worried about [her] daughter and [her] father and could not concentrate or
focus.” Id. The appellant enclosed a letter from a hospital indicating that her
father was admitted on February 28, 2020, and was, as of the March 10, 2020 date
of the letter, admitted and in critical condition in the hospital’s Cardiac Intensive
Care Unit. Id. at 14. She also enclosed a document indicating that, without any
further detail, her father had a “Hospital Visit” from April 27 to May 9, 2020, but
that he also had a “Home Care Visit” on May 3, 2020. Id. at 16.
Other than the general assertion that she was worried, the appellant has not
described how the illnesses of her family members prevented her from filing her
petition for review, and the evidence she submits does not account for the period
of untimeliness. Thus, the appellant’s assertion does not establish good cause for
the filing delay. See Pine v. Department of the Army , 63 M.S.P.R. 381, 383
(1994) (finding that a general claim of a family member’s illness and general4
family difficulties that does not specifically account for the period of
untimeliness does not establish good cause for waiver of the filing deadline); see
also Alford v. Office of Personnel Management , 108 M.S.P.R. 414, ¶¶ 10-11
(2008) (finding that a doctor’s statement that the appellant was under his care did
not establish good cause for her untimely petition for appeal based on illness,
when the statement contained no explanation as to how the medical condition
prevented her from filing a timely appeal).
Although the 2-day delay is arguably minimal, regardless of how minimal
the delay, the Board has long held that it will not waive its timeliness
requirements in the absence of a showing of good cause, even in the case of a pro
se appellant. See Gonzalez v. Department of Veterans Affairs , 111 M.S.P.R. 697,
¶ 11 (2009) (stating that the Board has consistently denied a waiver of the filing
deadline if a good reason for the delay is not shown, even when the delay is
minimal and the appellant is pro se); Stromfeld v. Department of Justice ,
25 M.S.P.R. 240, 241 (1984) (dismissing a petition for review as untimely filed
when it was filed 1 day late, but the appellant offered no reasonable explanation
for the delay). Thus, even considering the appellant’s pro se status, and the
length of the delay, we find that the appellant has not presented evidence of due
diligence or the existence of circumstances beyond her control that affected her
ability to file her appeal such that we should waive the filing deadline. Gonzalez,
111 M.S.P.R. 697, ¶ 11.
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 30-day suspension.5
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Sultana_NargisDC-0752-20-0104-I-1__Final_Order.pdf | 2024-07-24 | NARGIS SULTANA v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-20-0104-I-1, July 24, 2024 | DC-0752-20-0104-I-1 | NP |
879 | https://www.mspb.gov/decisions/nonprecedential/Oliver_Roslyn_E_PH-315H-20-0299-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSLYN ELEASE OLIVER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-315H-20-0299-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Roslyn Elease Oliver , Philadelphia, Pennsylvania, pro se.
Edward C. Tompsett , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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
Effective September 15, 2019, the agency appointed the appellant to the
career-conditional position of Legal Administrative Specialist in the competitive
service, subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 5
at 54-55. The appellant had previously held a Claims Clerk position with the
agency, but had resigned effective March 16, 2001. Id. at 62. On or around April
2, 2020, the agency issued to the appellant a notice of proposed termination for
failure to disclose information required in the OF-306, Declaration for Federal
Employment (OF-306). Id. at 47-53. The proposal clearly informed the appellant
that she had the right to review the materials relied upon in support of the
proposed termination and to reply to the proposed action in writing. Id. at 52.
The appellant submitted a written reply. Id. at 20-22. Less than 1 year after the
appellant’s initial appointment, effective May 13, 2020, the agency terminated
her appointment. Id. at 11-19. The termination letter stated that the decision was
“based in whole or in part on conditions arising before [her] appointment.” Id.
at 12.2
The appellant filed an appeal and requested a hearing. IAF, Tab 1 at 2.
She checked the box indicating that she was challenging her “[t]ermination during
probationary or initial service period.” Id. at 4. The appellant asserted that she
had “simply made a mistake” during the application process and “would NEVER
intentionally omit application information.” Id. In the acknowledgment order,
the administrative judge informed the appellant that the Board may not have
jurisdiction over her appeal and apprised her of the regulatory right to appeal for
probationers in the competitive service and the requirements for meeting the
definition of an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights.
IAF, Tab 2 at 2-5. Neither party responded to the acknowledgment order. The
administrative judge issued a subsequent jurisdiction order, which required the
agency to file a jurisdictional response, provided the appellant with the
opportunity to respond to that response, and informed the parties of the date on
which the record on jurisdiction would close. IAF, Tab 3 at 1-2.
The agency submitted a narrative response and evidence file. IAF, Tab 5.
The appellant did not file any response or pleading addressing the matter of
jurisdiction. The administrative judge issued a subsequent order informing the
appellant that it appeared that she had been terminated at least in part for reasons
arising before the date of her appointment and that the agency was therefore
required to provide her with notice and an opportunity to respond to her proposed
termination. IAF, Tab 8 at 1. He stated that it appeared from the evidence in the
record that the agency had done so and noted that the appellant had not made
allegations that her termination was due to marital status or partisan political
reasons. Id. The administrative judge ordered the appellant to show cause why
her appeal should not be dismissed for lack of jurisdiction. Id. at 1-2. The
appellant did not file a response to the order to show cause.
Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal because the appellant failed to make a
nonfrivolous allegation that the Board had jurisdiction over her appeal. IAF,3
Tab 9, Initial Decision (ID) at 1, 4. The administrative judge found that, because
the agency terminated the appellant during a probationary period in part for
pre-appointment reason, it was required to follow the procedural requirements set
forth at 5 C.F.R. § 315.805, but that the appellant had not alleged that the agency
failed to comply with these requirements and that the agency had proven that it
provided the requisite notice, opportunity to respond, and decision. ID at 4.
Furthermore, he found that the appellant had not alleged that she was terminated
due to marital status or partisan political reasons. Id. Finally, the administrative
judge found that the appellant had not presented any prior Federal service that
could be tacked on to either enable her to meet the definition of an “employee” or
complete her probationary period. Id.
The appellant has filed a petition for review arguing that she “completed
[her] probationary period years ago” and asserting that she had not been afforded
her proper rights on appeal. Petition for Review (PFR) File, Tab 1 at 3. The
agency has filed a response arguing that the appellant’s prior service could not be
tacked on to her most recent service for purposes of her probationary period
because she had an 18-year gap in her employment with the agency. PFR File,
Tab 3 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant has the burden
of establishing that the Board has jurisdiction over her appeal. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). To establish Board jurisdiction under 5 U.S.C. chapter 75,
an individual must, among other things, show that she satisfied one of the
definitions of “employee” in 5 U.S.C. § 7511(a)(1). Walker v. Department of the
Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual in the competitive
service, such as the appellant, this means that she either must not be serving a4
probationary or trial period under an initial appointment, or have completed
1 year of current continuous service under other than a temporary appointment
limited to 1 year or less. 5 U.S.C. § 7511(a)(1)(A)(i), (ii). A probationary
employee in the competitive service has a limited regulatory right of appeal. See
5 C.F.R. § 315.806. If such a person is terminated for reasons that arose after her
appointment, as was the appellant, she may appeal to the Board only if he raises a
nonfrivolous claim that her termination was based on partisan political reasons or
marital status. 5 C.F.R. § 315.806(b). Under 5 C.F.R. § 315.806(c), a
probationary employee whose termination was based in whole or in part on
conditions arising before her appointment may appeal her termination to the
Board on the ground that it was not effected in accordance with the procedural
requirements set forth in 5 C.F.R. § 315.805. LeMaster v. Department of
Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016). Those procedural requirements
include advance notice of the termination, an opportunity to respond, and
consideration of the response. Id., ¶ 13; 5 C.F.R. § 315.805(a)-(c). In a
probationary termination appeal arising under section 315.806(c), the only issue
before the Board is whether the agency’s failure to follow the procedures set forth
in section 315.805 was harmful error and the Board does not address the merits of
the agency’s termination. LeMaster, 123 M.S.P.R. 453, ¶ 7.
An appellant is entitled to a jurisdictional hearing if she presents
nonfrivolous allegations2 of Board jurisdiction. Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has made a
nonfrivolous allegation of jurisdiction entitling her 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
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).5
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Id.
On petition for review, the appellant does not challenge the administrative
judge’s finding that she failed to make a nonfrivolous allegation that there was a
regulatory basis for her appeal under the provisions set forth in 5 C.F.R. part 315,
subpart H. PFR File, Tab 1 at 3; ID at 3-4. Rather, she seemingly challenges the
administrative judge’s finding that she failed to make a nonfrivolous allegation
that she was an “employee” for purposes of 5 U.S.C. chapter 75 appeal rights.
PFR File, Tab 1 at 3; ID at 4. The appellant argues for the first time on review
that she was not a probationary employee but rather “a full time employee for
11 years” with Board appeal rights. PFR File, Tab 1 at 3. The appellant did not
submit any supporting evidence of her prior service with the agency or cite to any
of the documentary evidence submitted by the agency during the pendency of the
appeal. Id.
The Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. See Banks v.
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant has
made no such showing, and she did not submit any supporting evidence of her
prior service with the agency. PFR File, Tab 1 at 3. She offers no explanation
why she did not make this argument during the pendency of her appeal or indeed
respond at all to the administrative judge’s numerous jurisdictional orders. Id.
The agency’s documentary submissions identify prior service ending on March
16, 2001, more than 18 years prior to the appointment at issue in the present
appeal. IAF, Tab 5 at 54-55, 62. The appellant does not explain on review if the
alleged 11-year service with the agency to which she refers is this service
identified by the agency or more recent Federal service. PFR File, Tab 1 at 3. In
contrast to the appellant’s argument that she was “not allowed to give
documentary evidence or to be represented by a representative,” PFR File, Tab 16
at 3, the administrative judge provided her with three separate opportunities
during the pendency of the appeal to provide evidence and argument regarding
the jurisdictional issue, IAF, Tabs 2-3, 8. Moreover, the administrative judge
provided the appellant with detailed instructions how to file a designation of
representative in the acknowledgment order. IAF, Tab 2 at 5-6.
Therefore, even if we were to consider her new argument, the appellant has
not made a nonfrivolous allegation that she meets the definition of an “employee”
in the competitive service under 5 U.S.C. § 7511(a)(1)(A) or that the Board has
jurisdiction over her appeal. See Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (stating that the Board will generally not grant a petition for
review based on “new” evidence absent a showing that it is of sufficient weight to
warrant an outcome different from that of the initial decision). She has provided
no supporting evidence or argument for her conclusory statement that she was not
a probationary employee and has set forth no facts demonstrating that she had
completed 1 year of current continuous service under other than a temporary
appointment limited to 1 year or less. PFR File, Tab 1 at 3; see 5 U.S.C.
§ 7511(a)(1)(A)(i), (ii). We also agree with the administrative judge that the
appellant has not alleged that the agency failed to follow the procedural
requirements set forth in 5 C.F.R. § 315.805 or that she was terminated due to her
marital status or for partisan political reasons, and therefore, has not made a
nonfrivolous allegation that she has a regulatory right to appeal under 5 C.F.R.
§ 315.806. PFR File, Tab 1 at 3; ID at 3-4.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 the9
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Oliver_Roslyn_E_PH-315H-20-0299-I-1__Final_Order.pdf | 2024-07-23 | ROSLYN ELEASE OLIVER v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-315H-20-0299-I-1, July 23, 2024 | PH-315H-20-0299-I-1 | NP |
880 | https://www.mspb.gov/decisions/nonprecedential/Nicolle_NoahSF-4324-22-0434-I-1__FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NOAH NICOLLE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-4324-22-0434-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carson Bridges , Esquire, and Shane Robertson , Esquire, Dallas, Texas,
for the appellant.
Mandeev Singh Brar , Esquire, 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
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his appeal under the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified 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).
amended at 38 U.S.C. §§ 4301-4335). On petition for review, the appellant
asserts that the administrative judge erred in finding that he failed to prove that
his military service was a motivating factor in his termination, and he challenges
the administrative judge’s credibility determinations in that regard. Petition for
Review File, Tab 5 at 8-10. He also argues that the administrative judge erred in
his conclusions regarding the appellant’s disparate treatment claim and in finding
that the agency would have terminated him even absent a prohibited
consideration. Id. at 10-14. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the 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
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 115-195,5
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.
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 | Nicolle_NoahSF-4324-22-0434-I-1__FInal_Order.pdf | 2024-07-23 | NOAH NICOLLE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-4324-22-0434-I-1, July 23, 2024 | SF-4324-22-0434-I-1 | NP |
881 | https://www.mspb.gov/decisions/nonprecedential/Sinkler_GregoryNY-1221-23-0008-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY SINKLER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-1221-23-0008-W-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Christopher Richins , 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.
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. On
petition for review, the appellant realleges that he made protected disclosures
regarding the agency’s distribution of COVID-19 incentive awards and his safety
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
concerns about the number of patient pickups, and that these disclosures were a
contributing factor in the agency’s decision to take certain personnel actions.
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 Board has jurisdiction over an IRA appeal if the appellant exhausts 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 as defined by 5 U.S.C.
§ 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 8; see Yunus v. Department of Veterans Affairs ,
242 F.3d 1367, 1371 (Fed. Cir. 2001). In dismissing this IRA appeal for lack of
jurisdiction, the administrative judge correctly found that the appellant failed to
nonfrivolously allege that he made protected disclosures. Because the appeal
does not meet this jurisdictional requirement, we do not make a finding as to the
correctness of the administrative judge’s contributing factor analysis. Similarly,2
we do not make a finding as to whether the appeal, or some of the claims therein,
is also barred by 5 U.S.C. § 7121(g).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).
2 Though not addressed in the initial decision or raised by either party on petition for
review, the record indicates that the appellant filed a grievance concerning at least one
of the claims raised in the instant appeal. Initial Appeal File, Tab 1 at 101, Tab 9
at 9-10.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 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 | Sinkler_GregoryNY-1221-23-0008-W-1__Final_Order.pdf | 2024-07-23 | GREGORY SINKLER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-23-0008-W-1, July 23, 2024 | NY-1221-23-0008-W-1 | NP |
882 | https://www.mspb.gov/decisions/nonprecedential/Medina_Angela_M_DE-315H-23-0102-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA M. MEDINA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-315H-23-0102-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angela M. Medina , Torrington, Wyoming, pro se.
Dana Marie Sherman and Kyle Ray Johnson , Denver, Colorado, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
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 argues that her job performance was acceptable,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 her absences were excusable because of weather conditions and personal
circumstances, and that the agency failed to follow certain procedures in
terminating her. 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 | Medina_Angela_M_DE-315H-23-0102-I-1__Final_Order.pdf | 2024-07-23 | ANGELA M. MEDINA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-315H-23-0102-I-1, July 23, 2024 | DE-315H-23-0102-I-1 | NP |
883 | https://www.mspb.gov/decisions/nonprecedential/McDonald_Eugene_A_DC-0752-20-0509-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EUGENE A. MCDONALD,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-20-0509-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eugene A. McDonald , Fredericksburg, Virginia, pro se.
Andrew D. Han , Esquire, Fort McNair, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his chapter 75 removal appeal as untimely filed without good cause
shown. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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 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 does not challenge, and we discern no
basis to disturb, the administrative judge’s conclusion that the appellant’s appeal
was untimely filed by 9 days. Petition for Review (PFR) File, Tab 1 at 2-5;
Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 3; see 5 C.F.R.
§ 1201.22(b)(1). Instead, the appellant challenges the administrative judge’s
finding that he did not show good cause for the delay. He makes the following
assertions in this regard: (1) the administrative judge erroneously found that the
appellant was physically ill from February 13, 2020, through February 27, 2020,
when he was actually ill through March 14, 2020; (2) he was confused regarding
the applicable filing deadline; and (3) he encountered unspecified problems with
his computer and printer.2 PFR File, Tab 1 at 2-4.
2 The appellant also seemingly asserts that the administrative judge erroneously stated
that he was prescribed over-the-counter medications for his illness when he actually
took “3 different prescriptions.” Compare PFR File, Tab 1 at 2, with ID at 5. Insofar as
this discrepancy is not material to the outcome of this appeal, we discern no basis to
disturb the initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (explaining that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision). 2
As properly set forth in the initial decision, ID at 3, the Board may waive
the deadline for filing an appeal if the appellant shows good cause for the
untimely filing, Walls v. Merit Systems Protection Board , 29 F.3d 1578, 1581
(Fed. Cir. 1994); 5 C.F.R. § 1201.22(c). In making a good cause determination,
the Board will consider the factors set forth in 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),
such as 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.
The administrative judge also correctly noted that the Board has held that a
party’s medical condition(s) may provide good cause for an untimely filing. ID
at 4-5 (citing Jerusalem v. Department of the Air Force , 107 M.S.P.R. 660, ¶ 5,
aff’d, 280 F. App’x. 973 (Fed. Cir. 2008), and Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998)). To establish that an untimely filing was the result
of an illness, the party must: (1) identify the time period during which he
suffered from the illness; (2) submit medical evidence showing that he suffered
from the alleged illness during that time period; and (3) explain how the illness
prevented him from timely filing his appeal or requesting an extension of time.3
Lacy, 78 M.S.P.R. at 437. The proffered medical evidence must address the
entire period of the delay. ID at 5; Perrot v. Department of the Navy ,
84 M.S.P.R. 468, ¶ 6 (1999).
Here, the appellant contends that the administrative judge misstated the
dates of his illness in the initial decision. PFR File, Tab 1 at 2-4; ID at 4.
However, even assuming that the administrative judge so erred, a different
3 The administrative judge correctly informed the appellant of these criteria in an order
to show cause. IAF, Tab 3 at 2-3.3
outcome is not warranted. To this end, the appellant’s Board appeal was due on
or before March 16, 2020, and in his petition for review, the appellant admits that
he felt better on March 14, 2020. PFR File, Tab 1 at 2-4. The appellant has
failed to address the entire period of his delay insofar as he has provided no
explanation as to why his medical conditions prevented him from filing his appeal
before the March 16, 2020 deadline or requesting an extension of time to do so.
See, e.g., Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶¶ 22-24 (2016)
(finding that the appellant did not establish good cause for the delay in filing his
removal appeal from August 27, 2009, when he knew the union would not
represent him, until August 10, 2010, when he began treatment for his conditions,
and he presented no evidence of illness that affected his ability to file a removal
appeal during the 7 months between August 27, 2009, and when he filed an
application for disability retirement); Nesby v. Office of Personnel Management ,
81 M.S.P.R. 118, ¶¶ 5-7 (finding that the appellant’s petition for review was
untimely filed without good cause shown when the appellant showed that she was
mentally incapacitated for only a portion of the period of her delay), review
dismissed, 215 F.3d 1346 (Fed. Cir. 1999) (Table). Thus, the appellant has failed
to show that his medical conditions led to the filing delay.
The appellant also avers that he confused the time limit for filing an equal
employment opportunity appeal with the time limit for filing a Board appeal due
to his illness and “the meds [he] was on.” PFR File, Tab 1 at 4. We are not
persuaded by this argument, insofar as the agency’s decision letter clearly and
specifically informed the appellant of the applicable deadline. IAF, Tab 1 at 10;
ID at 5-6; see Via v. Office of Personnel Management , 114 M.S.P.R. 632, ¶ 7
(2010) (finding that misinterpretation or misreading the filing deadline where
clear notice is provided does not show good cause to waive a filing deadline); see
also Williams v. Office of Personnel Management , 71 M.S.P.R. 597, 606 (1996)
(concluding that the appellant’s failure to follow the agency’s straightforward4
notice of appeal rights constituted a failure to exercise due diligence or ordinary
prudence), aff’d, 119 F.3d 16 (Fed. Cir. 1997) (Table).
The appellant further asserts that he experienced difficulties with his
computer and printer, but he did not explain what difficulties he experienced.
PFR File, Tab 1 at 3-4. This vague assertion does not provide a basis to disturb
the administrative judge’s conclusion that the appellant’s technological issues did
not excuse his filing delay. ID at 5; see Kinan v. Department of Defense ,
89 M.S.P.R. 407, ¶ 6 (2001) (explaining that the appellant’s vague assertion that
he experienced “difficulty and hardship” did not establish good cause for his
filing delay).
Although the appellant’s pro se status and the fact that he suffered from a
short-term illness during a portion of the filing period are factors weighing in his
favor, we find that they are outweighed by the other Moorman factors. In
particular, we agree with the administrative judge’s finding that the appellant’s
9-day filing delay was not insignificant. ID at 6; see Harris v. Department of
Defense, 101 M.S.P.R. 123, ¶ 10 (2006) (finding that an 8-day filing delay was
not minimal). Moreover, the appellant has not presented any evidence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from timely filing the appeal following his recovery from illness.
Therefore, we discern no basis to disturb the administrative judge’s finding that
the appellant has not shown good cause for the filing delay.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | McDonald_Eugene_A_DC-0752-20-0509-I-1__Final_Order.pdf | 2024-07-23 | EUGENE A. MCDONALD v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0509-I-1, July 23, 2024 | DC-0752-20-0509-I-1 | NP |
884 | https://www.mspb.gov/decisions/nonprecedential/Yang_David_M_SF-0752-22-0502-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. YANG,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-22-0502-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shawn A. Luiz , Esquire, Honolulu, Hawaii, for the appellant.
Walter Joseph Folger , Esquire, Fort Shafter, Hawaii, for the agency.
Patsy M. Takemura , Esquire, Honolulu, Hawaii, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension based on the suspension of his access to
classified information. On petition for review, the appellant argues that the
penalty of an indefinite suspension was not justified, and he reasserts his claims
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
from below that the Director did not have authority to suspend his access to
classified information, that his duties did not require him to have access to
classified information, that the agency engaged in harmful procedural error, and
that the suspension of his access to classified information and subsequent
indefinite suspension were the result of discrimination based on race, disability,
and age, and reprisal for whistleblowing. Petition for Review (PFR) File, Tab 1.2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
2 The appellant has filed a reply to the agency’s response to the petition for review.
PFR File, Tab 7. Pursuant to 5 C.F.R. § 1201.114(e), any such reply must be filed
within 10 days of the date of service of the response to the petition for review. Here,
the agency’s response to the petition for review was filed on March 10, 2023, making
any reply thereto due on March 20, 2023. The appellant submitted his reply brief on
April 1, 2023, which makes it untimely filed by 12 days. 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). The appellant submitted with his motion a
declaration from his counsel, which stated that counsel was out of the country with
limited access to the internet from March 7-20, 2023, on vacation with his family and
that, upon his return, he was ill. PFR File, Tab 6 at 6. He asserts that his first day back
at the office was March 24, 2023. Id. The appellant has not established good cause for
the untimely filing. Appellant’s counsel’s explanation that he was on vacation when the
filing period ran is not a reasonable excuse for missing a filing deadline. See Dooley v.
Department of the Air Force , 57 M.S.P.R. 684, 690-91 (1993). Moreover, by counsel’s
own admission, even after returning to work, it took him another week to submit the
reply pleading. Thus, we conclude that he did not exercise due diligence upon his
return. See Figueroa v. Office of Personnel Management , 81 M.S.P.R. 33, ¶ 9 (1999).
It is well settled that an appellant is responsible for the action or inaction of his chosen
representative. Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981).
Accordingly, we deny the appellant’s motion to waive the filing deadline for his
untimely reply.2
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 initial decision to find that the penalty of indefinite suspension
was reasonable, we AFFIRM the initial decision.
¶2In the initial decision, the administrative judge correctly found that the
appellant’s position required a security clearance and eligibility for access to
classified information, his access to classified information was suspended, the
agency complied with the procedural protections set forth in 5 U.S.C. § 7513(b),
the agency did not have a policy entitling the appellant to reassignment in lieu of
an indefinite suspension, and the indefinite suspension from pay and duty statute
included a condition subsequent that would terminate the suspension. Initial
Appeal File (IAF), Tab 35, Initial Decision (ID) at 7-16; see Grimes v.
Department of Justice , 122 M.S.P.R. 36, ¶ 7 (2014); Munoz v. Department of
Homeland Security , 121 M.S.P.R. 483, ¶ 15 (2014); Hernandez v. Department of
the Navy, 120 M.S.P.R. 14, ¶ 6 (2013). She also correctly found that the
appellant failed to establish his affirmative defenses of harmful procedural error,
discrimination on the basis of race, age, and disability, and whistleblower
reprisal. ID at 17-21. The appellant’s arguments on review do not provide a
basis to disturb the initial decision in this regard. The administrative judge
further found that a nexus exists between the appellant’s indefinite suspension
and the efficiency of the service. ID at 16-17. The appellant has not challenged
this finding on review, and we discern no reason to disturb it. 3
¶3Generally, to sustain an indefinite suspension under chapter 75, the agency
must also show that the penalty was reasonable. Hall v. Department of Defense ,
117 M.S.P.R. 687, ¶¶ 6, 10 (2012). In the initial decision, the administrative
judge did not make a finding regarding the reasonableness of the penalty, and the
appellant raises in his petition for review arguments concerning the penalty.
Specifically, he asserts that the penalty is too severe given that there was no
finding of wrongdoing, that the agency could and should have adopted a prior
recommendation for a 10-day suspension, and that the agency did not apply the
Douglas factors. PFR File, Tab 1 at 7-10.
¶4The appellant’s arguments are without merit. As an initial matter, the
Board has explained that a traditional Douglas factors analysis is generally not
applicable in cases when an appellant’s indefinite suspension is based on the
revocation or suspension of a security clearance required for his position and not
the result of misconduct. See Munoz, 121 M.S.P.R. 483, ¶ 15. Regarding the
argument that agency officials should have adopted a prior recommendation for a
10-day suspension, PFR File, Tab 1 at 9-10, the appellant has not adequately
explained to what recommendation he is referring. The notice of proposed action
in this appeal recommends an indefinite suspension and that is the penalty that
was adopted. IAF, Tab 5 at 12 -15, 82-85. After our review of the record, it
appears that the appellant was subject to a 10-day suspension by his supervisor at
his prior duty location in Korea, but the appellant had already returned to duty in
Hawaii before serving that suspension. Id. at 96. To the extent this is the 10 -day
suspension to which the appellant refers, that action appears to have been taken or
recommended on the basis of the alleged misconduct that formed the basis of the
Defense Criminal Investigative Service investigation, and not the suspension of
his access to classified information, which did not occur for another several
months.
¶5Regarding the appellant’s general argument that the indefinite suspension is
too severe and akin to a disciplinary punishment, the Board has consistently4
upheld indefinite suspensions based on an inability to meet a condition of
employment due to the suspension of access to classified information or
revocation of a security clearance. Palafox v. Department of the Navy ,
124 M.S.P.R. 54, ¶¶ 4-5, 14 (2016); Rogers v. Department of Defense ,
122 M.S.P.R. 671, ¶ 5 (2015) (stating that an agency may indefinitely suspend an
employee when his access to classified information has been suspended and he
needs such access to perform his job); Helms v. Department of the Army ,
114 M.S.P.R. 447, ¶¶ 2, 10 (2010). Further, the U.S. Court of Appeals for the
Federal Circuit has found that, in the absence of a statute or regulation creating a
substantive right to reassignment, the Board is precluded from requiring the
agency to transfer the appellant to a position not requiring a security clearance or
access to classified information. See Ryan v. Department of Homeland Security ,
793 F.3d 1368 (Fed. Cir. 2015). Accordingly, we supplement the initial decision
to find that the agency proved that the penalty of an indefinite suspension is
reasonable.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.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. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Yang_David_M_SF-0752-22-0502-I-1__Final_Order.pdf | 2024-07-23 | DAVID M. YANG v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-22-0502-I-1, July 23, 2024 | SF-0752-22-0502-I-1 | NP |
885 | https://www.mspb.gov/decisions/nonprecedential/Hamilton_CharlesPH-0752-23-0150-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES HAMILTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-23-0150-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Hamilton , Draper, Virginia, pro se.
Rayetta W. Waldo , Huntington, West Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because the proposed action to
remove him had not yet taken place. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2Having considered the appellant’s petition for review, we affirm the initial
decision dismissing the appeal for lack of jurisdiction. A proposed removal is not
an adverse action that is appealable to the Board pursuant to 5 U.S.C. chapter 75.
See 5 U.S.C. §§ 7512, 7513(d); Lethridge v. U.S. Postal Service , 99 M.S.P.R.
675, ¶ 13 (2005) (stating that the applicable statutes limit the Board’s jurisdiction
to removals, not proposed removals); Weber v. Department of the Army ,
45 M.S.P.R. 406, 409 (1990) (stating that a removal must have been effected
before the Board has jurisdiction over that action). However, an employee may
seek corrective action from the Board in an individual right or action (IRA)
appeal pursuant to 5 U.S.C. § 1221 when he alleges that the removal was
proposed because of his whistleblowing or other protected activity. See McNeil v.
Department of Defense , 100 M.S.P.R. 146, ¶ 21 (2005); 5 C.F.R. § 1209.2.
¶3In his initial appeal, the appellant asserted, among other things, that he was
retaliated against after reporting unsafe work conditions to “HQ.” Initial Appeal
File (IAF), Tab 1 at 5. Nevertheless, before pursuing an IRA appeal, the
appellant must first seek corrective action from the Office of Special Counsel
(OSC) before seeking corrective action from the Board. See Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 5 (quoting 5 U.S.C. § 1214(a)2
(3)). There is no indication that the appellant has done so here; to the contrary,
the appellant has averred that he has not done so. IAF, Tab 1 at 4. Thus, there is
no basis for finding IRA jurisdiction at this time. This decision is without
prejudice to the appellant timely pursuing a future IRA appeal should he first
exhaust his remedy with OSC regarding a whistleblower reprisal claim.
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 | Hamilton_CharlesPH-0752-23-0150-I-1__Final_Order.pdf | 2024-07-23 | CHARLES HAMILTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-23-0150-I-1, July 23, 2024 | PH-0752-23-0150-I-1 | NP |
886 | https://www.mspb.gov/decisions/nonprecedential/Knoles_William_E_DA-0752-19-0410-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM E. KNOLES,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-19-0410-C-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William E. Knoles , Shawnee, Oklahoma, pro se.
W. David Vernon , Esquire, Tinker Air Force Base, Oklahoma, 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, which denied his petition for enforcement. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the compliance initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
On July 7, 2019, the appellant filed a Board appeal challenging a reduction
in grade and pay under 5 U.S.C. chapter 75. Knoles v. Department of the
Air Force, MSPB Docket No. DA-0752-19-0410-I-1, Initial Appeal File (IAF),
Tab 1 at 4, 6, Tab 8 at 36. Effective November 28, 2019, the parties entered into
a settlement agreement resolving the appeal. IAF, Tab 26. Among other things,
the agency agreed to “submit a request to RESTORE eighty (80) hours of sick
leave to Appellant to [the Defense Finance Accounting Service (DFAS)] within
thirty (30) days of the effect [sic] date of this agreement.” Id. at 4 (capitalization
as in original). The administrative judge then issued an initial decision
dismissing the appeal as settled and entering the settlement agreement into the
record for enforcement purposes. IAF, Tab 27. Neither party petitioned for
review, and the initial decision became the final decision of the Board. See
5 C.F.R. § 1201.113.
On February 9, 2020, the appellant filed a petition for enforcement,
alleging that the agency failed to restore the 80 hours of sick leave as agreed.2
Knoles v. Department of the Air Force , MSPB Docket No.
DA-0752-19-0410-C-1, Compliance File (CF), Tab 1. The agency responded,
submitting evidence and argument to show that the appellant originally had a sick
leave balance of negative 80 hours on January 4, 2020, and that, on January 29,
2020, DFAS retroactively restored 80 hours of sick leave, bringing the appellant’s
leave balance on that date to zero. CF, Tab 4 at 4-7, 9, 14. The appellant
responded, stating that he wished to withdraw from the settlement agreement
because he was “not satisfied with the resolutions that were agreed upon,” and
that the agency “continues to play games” with him. CF, Tab 5 at 3.
The administrative judge then issued a compliance initial decision, denying
the petition for enforcement on the basis that the appellant failed to establish that
the agency was in noncompliance. CF, Tab 6, Compliance Initial Decision (CID).
She further found that, to the extent that the appellant was attempting to
challenge the validity of the settlement agreement, he would need to do so in a
petition for review of the initial decision that dismissed the appeal as settled.
CID at 3. The appellant has filed a petition for review of the compliance initial
decision, alleging that the agency did not pay him for the restored sick leave.
Petition for Review (PFR) File, Tab 1. The agency has responded to the petition
for review, and the appellant has filed a reply to the agency’s response. PFR File,
Tabs 3-4.
ANALYSIS
The Board will enforce a settlement agreement which has been entered into
the record in the same manner as a final Board decision or order. Haefele v.
Department of the Air Force , 108 M.S.P.R. 630, ¶ 7 (2008). The appellant, as the
party alleging noncompliance, bears the burden of proving by preponderant
evidence that the agency breached the agreement. Id. The agency, however, must
respond to specific allegations of breach with relevant evidence showing that it
complied or there was good cause for noncompliance. Dougherty v. Department3
of Agriculture, 99 M.S.P.R. 161, ¶ 9 (2005). A settlement agreement is a
contract, and, as such, will be enforced in accord with contract law. Greco v.
Department of the Army , 852 F.2d 558, 560 (Fed. Cir. 1988).
In this case, there does not seem to be any serious dispute that the agency,
through DFAS, restored 80 hours to the appellant’s sick leave balance as agreed.
IAF, Tab 4 at 5; PFR File, Tab 4 at 4. However, the agency does not appear to
dispute the appellant’s assertion that he has not received any pay for the restored
hours. PFR File, Tab 1 at 6.
As an initial matter, we find that the appellant did not explicitly raise this
issue below, citing only the provision of the settlement agreement that he believes
was violated, without explaining the nature of the alleged violation. CF, Tab 1
at 3. The Board normally 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 Board has
repeatedly applied this principle to compliance proceedings. Allison v.
Department of Transportation , 111 M.S.P.R. 62, ¶ 9 (2009).
Furthermore, the record shows that the appellant’s negative sick leave
balance was the result of him using more sick leave than he had accrued. CF,
Tab 4 at 14; see generally 5 C.F.R. § 630.402 (advanced sick leave). Presumably,
the appellant was paid for this advanced sick leave when he used it; otherwise, it
would have been recorded as leave without pay and not counted against his sick
leave balance. When DFAS restored the 80 hours of sick leave, this had the
effect of liquidating the advanced sick leave, thereby restoring the appellant’s
leave balance to zero, consistent with the Office of Personnel Management’s
guidance for such situations. See Office of Personnel Management, Fact Sheet:
Advanced Sick Leave, https://www.opm.gov/policy-data-oversight/pay-leave/
leave-administration/fact-sheets/advanced-sick-leave/ (last visited July 22, 2024).
Had the appellant received pay for these 80 hours of restored leave, it would have4
had the effect of giving him two payments for the same 80 hours of time—one
payment when he took the advanced sick leave and another when the leave was
restored. We find no indication in the language of the settlement agreement,
which is patently unambiguous with respect to restoration of sick leave, that the
parties agreed to this arrangement. IAF, Tab 26 at 4. The Board will not imply a
term into an agreement that is unambiguous. Dunn v. Department of the Army ,
100 M.S.P.R. 89, ¶ 9 (2005).
The appellant appears to argue that, in the absence of such a payment, he
has received no benefit from the restoration of his sick leave balance. PFR File,
Tab 1at 6, Tab 4 at 6. This is not true. The negative leave balance liquidated by
the 80 hours of restored sick leave represented a debt that he would otherwise
likely have had to pay off through accruing a net positive balance of sick leave
over time or satisfy with a monetary deduction or repayment upon separation
from service. CF, Tab 4 at 14; PFR File, Tab 1 at 5; see 5 C.F.R. § 630.209.
We find that the restoration of the appellant’s leave balance, as provided in the
settlement agreement, constituted a significant tangible benefit to him, and for the
reasons explained in the compliance initial decision, we agree with the
administrative judge that the agency has satisfied its obligations in this regard.5
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Knoles_William_E_DA-0752-19-0410-C-1__Final_Order.pdf | 2024-07-23 | WILLIAM E. KNOLES v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-19-0410-C-1, July 23, 2024 | DA-0752-19-0410-C-1 | NP |
887 | https://www.mspb.gov/decisions/nonprecedential/Pegues_Lloyd_H_DA-315H-23-0164-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LLOYD H. PEGUES,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-315H-23-0164-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lloyd H. Pegues , San Antonio, Texas, pro se.
Marcus R Patton , Esquire, and Kimberly Quirk , Esquire, Fort Worth,
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 termination appeal for lack of jurisdiction because he lacked Board
appeal rights as a probationary employee with less than 1 year of Federal 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).
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).
¶2On petition for review, the appellant does not contest the administrative
judge’s determinations that the appellant was not an employee with 5 U.S.C.
chapter 75 appeal rights when the agency terminated him and that the appellant
failed to make a nonfrivolous allegation of jurisdiction over a probationary
termination appeal under 5 C.F.R. part 315, subpart H. Initial Appeal File (IAF),
Tab 8, Initial Decision (ID) at 3-4. We find no basis to disturb the initial
decision.
¶3The appellant argues that the administrative judge did not consider his
request for reasonable accommodation. Petition for Review (PFR) File,
Tab 2 at 4. Before the administrative judge, he argued that, due to his disabling
medical conditions, the agency should have given him a reasonable amount of
time to review and sign the Official Form (OF) 306 before he signed it on his first
day of employment. Initial Appeal File (IAF), Tab 1 at 5, Tab 4 at 5. However,
we agree with the administrative judge’s conclusion that, absent an otherwise
appealable action, the Board lacks jurisdiction over an allegation that the2
appellant was not provided with reasonable accommodation during the
application process. See McDonnell v. Department of the Navy , 84 M.S.P.R. 380,
¶ 11 (1999); Jafri v. Department of the Treasury , 68 M.S.P.R. 216, 220-21
(1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).
¶4Additionally, the appellant states that he is “still waiting” on documents
from a Freedom of Information Act (FOIA) request, which he attaches to his
petition for review. PFR File, Tab 2 at 4, 15-19. The Board may grant a petition
for review when new and material evidence is available that, despite the
petitioner’s due diligence, was not available when the record closed. 5 C.F.R.
§ 1201.115(d). To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been unavailable
despite due diligence when the record closed. Id. In his FOIA request, the
appellant requested all paper and electronic documents concerning his February 3,
2023 termination and matters related to him from January 17 to February 18,
2023. PFR File, Tab 2 at 17. The FOIA request is not new because it predates
the issuance of the initial decision and the record does not show that the appellant
informed the administrative judge about this request or requested a continuance
or a reopening of the record. See Cromwell v. Office of Personnel Management ,
8 M.S.P.R. 722, 725 (1981). Additionally, the documents he requested in the
FOIA filing are not new because they pertain to situations that occurred before or
upon his termination. PFR File, Tab 2 at 17. The appellant could have sought
such documents through discovery, the process of which was explained in the
administrative judge’s acknowledgment order. IAF, Tab 2 at 6-7. Furthermore,
these documents are not material because there is no indication that the
information he seeks is pertinent to the jurisdictional issues relevant to this
appeal. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
Therefore, we find that the documents related to the FOIA request are neither new
nor material. Thus, they are not a basis for disturbing the initial decision. 3
¶5The appellant also attaches other alleged new evidence to his petition for
review, including a medical note, the agency’s interrogatories to the appellant, a
“VA/DoD eBenefits” page, and a “steps to complete” an OF-306 page. PFR File,
Tab 2 at 6-14, 20. These documents were dated and contained information that
was available before the record closed and/or the issuance of the initial decision.
Id. Therefore, they are not new. See 5 C.F.R. § 1201.115(d). Additionally, the
documents either address the appellant’s request for reasonable accommodation
or concern the merits of the termination. PFR File, Tab 2 at 6-14, 20. They do
not pertain to the issue of jurisdiction and are therefore not material to the
outcome of the appeal. See Russo, 3 M.S.P.R. at 349.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Pegues_Lloyd_H_DA-315H-23-0164-I-1__Final_Order.pdf | 2024-07-23 | LLOYD H. PEGUES v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DA-315H-23-0164-I-1, July 23, 2024 | DA-315H-23-0164-I-1 | NP |
888 | https://www.mspb.gov/decisions/nonprecedential/Gilbert_Jan_L_DA-0731-20-0158-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAN L. GILBERT,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0731-20-0158-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jan L. Gilbert , Houston, Texas, pro se.
Jennifer Cook , Houston, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her suitability appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
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, a preference eligible veteran, filed an application for
employment with the agency as a Customs and Border Protection Officer
(CBPO). She was tentatively selected, but on April 19, 2019, the agency sent the
appellant a letter notifying her that her background investigation had uncovered
derogatory information, proposing to withdraw the tentative job offer, and
proposing to find the appellant “ineligible for employment in a National Security
Position and/or unsuitable for Federal employment.” Initial Appeal File (IAF),
Tab 4 at 27. The appellant responded to the letter on or about April 26, 2019,
addressing each allegation of derogatory information. IAF, Tab 1 at 7-25, Tab 8
at 4. On August 15, 2019, the agency notified the appellant that it had found her
unsuitable for the CBPO position pursuant to 5 C.F.R. part 731, and that its
tentative offer of employment was therefore withdrawn. IAF, Tab 5 at 11. The
basis of the suitability determination was “[c]riminal or dishonest conduct” and
“[m]isconduct or negligence in employment.” IAF, Tab 8 at 13. After a series of
email exchanges with the appellant, the agency directed her to the Customs and2
Border Protection’s Suitability Overview webpage for an outline of the most
common reasons for negative suitability determinations. IAF, Tab 5 at 11-13.
The agency informed the appellant that she was “eligible to re-apply at any time.”
Id. at 13.
On August 28, 2019, the appellant applied for another CBPO position, and
she was tentatively selected. IAF, Tab 4 at 25, Tab 8 at 4, 12. However, on
September 25, 2019, she received another notice stating that “your tentative offer
of employment is withdrawn because you have been deemed unsuitable for the
position pursuant to 5 C.F.R. Part 731.” IAF, Tab 4 at 31.
On November 25, 2019, the appellant filed a third application for
employment as a CBPO. IAF, Tab 8 at 4, 11. Again, she was tentatively
selected, but on January 3, 2020, the agency again withdrew the tentative offer
based on a negative suitability determination. IAF, Tab 1 at 26, Tab 4 at 30.
The appellant filed the instant Board appeal and requested a hearing. IAF,
Tab 1 at 2-3. She contested the negative suitability determination, alleged
harmful procedural error, and appeared to allege a violation of her veterans’
preference rights as well. Id. at 3, 5. The administrative judge issued a show
cause order, notifying the appellant that her appeal might be outside the Board’s
jurisdiction. IAF, Tab 7. He informed the appellant of the jurisdictional standard
for a suitability appeal and a Veterans Employment Opportunities Act of 1998
(VEOA) appeal. Id. at 2-4.
After the appellant responded, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction without holding the
appellant’s requested hearing. IAF, Tab 10, Initial Decision (ID); IAF, Tab 1
at 2. He found that, notwithstanding the agency’s suitability determination, the
individual nonselections based on that determination did not amount to
appealable suitability actions within the Board’s jurisdiction. ID at 4-6. He
further found that there was no evidence that the appellant had exhausted her
administrative remedies with the Department of Labor as a prerequisite to a3
VEOA appeal, and that the appellant’s allegation of harmful procedural error did
not serve to bring the appeal within the Board’s jurisdiction. ID at 6-7.
The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis as well as the agency’s negative suitability
determination.2 Petition for Review (PFR) File, Tab 1. The agency has not filed
a response.
ANALYSIS
Under 5 C.F.R. § 731.501(a), when an agency takes a suitability action
against a person, that person may appeal the action to the Board. A suitability
action is distinct from a suitability determination, the former constituting a
cancellation of eligibility, a removal, a cancellation of reinstatement eligibility,
or a debarment, and the latter constituting the underlying decision that a person is
suitable or not suitable for employment in a covered position or with a particular
agency. 5 C.F.R. §§ 731.101, .203(a). A nonselection or cancellation of
eligibility for a specific position is not a suitability action even if it is based on
the suitability criteria of 5 C.F.R. § 731.202. 5 C.F.R. § 731.203(b). Only
suitability actions are appealable to the Board. Suitability determinations are not.
Kazan v. Department of Justice , 112 M.S.P.R. 390, ¶ 6 (2009); see 5 C.F.R.
§§ 731.101, .203(a)-(b), .501(a).
In this case, we agree with the administrative judge that the appellant has
not made a nonfrivolous allegation that the agency took against her any of the
four types of suitability action enumerated in 5 C.F.R. § 731.203(a). ID at 5-6.
Rather, the agency simply declined to select the appellant for the CBPO positions
for which she applied. IAF, Tab 1 at 26, Tab 4 at 31, Tab 5 at 11. These
2 The appellant filed her petition for review shortly after the midnight deadline in the
Eastern Time Zone, and the Board’s e-Appeal Online system prompted her for an
explanation. Petition for Review File, Tab 1 at 3-4. However, the appellant completed
her submission before midnight in the Central Time Zone from which she filed. Id.
at 4. We therefore find that her petition for review was timely. See 5 C.F.R.
§ 1201.14(m)(1) (2020). 4
nonselections do not constitute suitability actions even though they were based on
suitability criteria and even though the appellant had already received tentative
offers of employment. See 5 C.F.R. § 731.203(b); see also Testart v. Department
of the Navy, 42 M.S.P.R. 21, 23 (1989) (finding that the Board lacks jurisdiction
over the withdrawal of an offer of appointment prior to entrance on duty). Our
finding on this issue is bolstered by the fact that each time the agency withdrew
its tentative job offer, it notified the appellant that she was not prevented from
reapplying. IAF, Tab 1 at 26, Tab 4 at 31, Tab 5 at 11. Nowhere did the agency
state that the appellant had been debarred or found ineligible for other positions.
See Ricci v. Merit Systems Protection Board , 953 F.3d 753, 758 (Fed. Cir. 2020).
On petition for review, the appellant argues that the agency’s continued
negative suitability determinations amounted to a “de facto barment” within the
Board’s jurisdiction. PFR File, Tab 1 at 9-11. However, the administrative judge
addressed this issue below, and we agree with him that alleged “constructive” or
“de facto” suitability actions are outside the Board’s jurisdiction. ID at 6; see
Ricci, 953 F.3d at 758-59.
The appellant also renews her challenges to the merits of the agency’s
negative suitability determination, as well as her allegation that the agency
committed harmful procedural error in arriving at its decision. PFR File, Tab 1
at 7-9, 11-15. However, the appellant’s arguments concerning the merits of the
suitability determination are insufficient to establish that she was subjected to an
appealable suitability action, and we agree with the administrative judge that her
allegations of harmful procedural error do not serve to confer Board jurisdiction
when it is otherwise absent. ID at 6-7; see Cowan v. Department of Agriculture,
13 M.S.P.R. 196, 198 (1982) (finding that the Board lacks jurisdiction to consider
a claim of harmful procedural error absent an otherwise appealable action), aff’d,
710 F.2d 803, 805 (Fed. Cir. 1983).
The appellant does not explicitly contest the administrative judge’s finding
that the Board lacks jurisdiction over her appeal under VEOA, and we agree with5
his determination on this issue. ID at 7; see Becker v. Department of Veterans
Affairs, 112 M.S.P.R. 507, ¶ 6 (2009) (“A VEOA appeal filed with the Board
without a showing that the appellant has exhausted his remedy with DOL will be
dismissed for lack of jurisdiction.”). We further note that the precise veterans’
preference claim that the appellant raised, i.e., that the agency passed her over for
selection based on a negative suitability determination, is explicitly excluded
from the Board’s suitability jurisdiction under the Office of Personnel
Management’s regulations. IAF, Tab 1 at 5; see 5 C.F.R. § 731.203(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 8
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Gilbert_Jan_L_DA-0731-20-0158-I-1__Final_Order.pdf | 2024-07-23 | JAN L. GILBERT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0731-20-0158-I-1, July 23, 2024 | DA-0731-20-0158-I-1 | NP |
889 | https://www.mspb.gov/decisions/nonprecedential/Francois_YvonDC-0752-20-0766-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YVON FRANCOIS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-20-0766-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Yvon Francois , Miami Beach, Florida, pro se.
Blake Lynne Bruce and Matthew L. Peterson , 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 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 appeal was untimely filed under 5 C.F.R.
§ 1201.154(b), we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
When an appellant raises an issue of prohibited discrimination in
connection with a matter otherwise appealable to the Board, he may either file a
timely complaint of discrimination with the agency or file an appeal with the
Board no later than 30 days after the effective date, if any, of the action being
appealed, or 30 days after the date of the appellant’s receipt of the agency’s
decision on the appealable action, whichever is later. 5 C.F.R. § 1201.154(a).
If an appellant has filed a timely formal complaint of discrimination with the
employing agency, and the agency resolves the matter or issues a final decision
on the formal complaint, a Board appeal must be filed within 30 days after the
appellant receives the agency resolution or final decision on the discrimination
issue. 5 C.F.R. § 1201.154(b). In her initial decision, the administrative judge
found that the appellant failed to timely file a discrimination complaint with the
agency, and she measured the timeliness of his appeal under 5 C.F.R.
§ 1201.154(a), based on the time that had elapsed since his removal. We find,2
however, that she should have instead applied the timeliness standard under
5 C.F.R. § 1201.154(b).
It is undisputed that the appellant initially elected to pursue a
discrimination complaint with the agency. We note that an employing agency
may dismiss a discrimination complaint that fails to comply with the applicable
regulatory time limits. 29 C.F.R. § 1614.107(a)(2). An employee dissatisfied
with such a dismissal may appeal it to the Equal Employment Opportunity
Commission (EEOC). 29 C.F.R. §1614.401(a). The Board defers to a finding
that a complaint was untimely filed when that decision was not appealed to the
EEOC, and also defers to a final EEOC decision finding a complaint untimely
filed. Moore v. U.S. Postal Service , 91 M.S.P.R. 277, ¶ 6 (2002). In this case,
however, there is no indication that the agency dismissed the appellant’s
complaint of discrimination as untimely filed. Thus, there is no basis for finding
that the time limit set forth at 5 C.F.R. § 1201.154(b) does not apply because of
an untimely filed discrimination complaint. See McCoy v. U.S. Postal Service ,
108 M.S.P.R. 160, ¶11 (2008).
Nonetheless, we find that the appellant’s Board appeal was untimely filed
under 5 C.F.R. § 1201.154(b). The agency issued its final decision resolving the
appellant’s discrimination claim on May 27, 2020. Initial Appeal File, Tab 5
at 20-30. As required under 29 C.F.R. 1614.302(d)(3), the agency advised the
appellant of the right to appeal the matter to the Board within 30 days of his
receipt of the decision. Id. at 29. The appellant has not alleged any unusual
delay in his receipt of the final agency decision, yet he did not file his Board
appeal until July 24, 2020, fifty-eight days after the final agency decision was
issued. Accordingly, we conclude that his appeal was untimely filed by more
than 3 weeks.
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.3
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). Here, the appellant failed to
respond to the administrative judge’s order to submit evidence and argument on
the timeliness issue, and he has still offered no explanation as to why he did not
timely file his Board appeal after receiving the final agency decision on his
discrimination claim. Silence does not constitute a showing of good cause.
Lewis v. Department of Housing and Urban Development , 96 M.S.P.R. 479, ¶ 6
(2004). Moreover, while we are mindful that the appellant is proceeding pro se, a
filing delay of more than 3 weeks is not minimal, and thus the length of the delay
does not provide a basis for waiving the filing deadline. See Rodriguez v.
Department of the Navy , 71 M.S.P.R. 396, 398 (1996) (dismissing a petition for
review untimely filed by 18 days, notwithstanding the appellant’s pro se status).
Accordingly, we affirm the administrative judge’s ultimate conclusion that the
appeal was untimely filed without a showing of good cause for the filing delay.
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
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
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 the6
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 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 | Francois_YvonDC-0752-20-0766-I-1__Final_Order.pdf | 2024-07-23 | YVON FRANCOIS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-20-0766-I-1, July 23, 2024 | DC-0752-20-0766-I-1 | NP |
890 | https://www.mspb.gov/decisions/nonprecedential/Egetoe_RobertoSF-0752-19-0586-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTO EGETOE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-19-0586-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindy O’Keefe , Esquire, La Grange, Illinois, for the appellant.
Ronda Parker-Rice , Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained 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
supplement the administrative judge’s penalty analysis, we AFFIRM the initial
decision.
BACKGROUND
The essential undisputed facts are fully set forth in the initial decision. By
way of summary, the appellant was formerly employed as a Federal Air Marshal
(FAM) with the Transportation Security Agency (TSA). Initial Appeal File
(IAF), Tab 16, Initial Decision (ID) at 2. On December 10, 2018, the agency
proposed the appellant’s removal based on four charges: (1) Inappropriate
Comments (seven specifications); (2) Misuse of Government Equipment (five
specifications); (3) Lack of Candor (one specification); and (4) Failure to Follow
Policy (one specification). ID at 2-5. After affording the appellant an
opportunity to respond orally and in writing, the deciding official issued a
decision sustaining Charges 1, 2, and 4 and all of their respective specifications,
but he did not sustain the lack of candor charge. ID at 5-6. The deciding official
further sustained the penalty of removal, and the agency removed the appellant,
effective July 1, 2019. ID at 1, 6.
The appellant filed a Board appeal in which he did not dispute the agency’s
charges or specifications (with the exception of Charge 1, specification 7), but he2
asserted that the penalty of removal was not reasonable. IAF, Tabs 1, 12. After
holding the appellant’s requested hearing, the administrative judge issued an
initial decision sustaining the appellant’s removal. ID at 1. The administrative
judge found that the agency proved all three of its charges in light of the
appellant’s stipulations. ID at 12. The administrative judge further found that
the deciding official properly weighed the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), and the penalty of removal was
reasonable. Id. She also found that the appellant failed to establish his disparate
penalty claim. Id.
The appellant has filed a petition for review in which he asserts that the
administrative judge erred in finding that the penalty of removal was reasonable.
Petition for Review (PFR) File, Tab 1. The agency has opposed the appellant’s
petition, and the appellant has filed a reply. PFR File, Tabs 3, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The penalty of removal is reasonable.
When, as here, all of the 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. Pinegar v. Federal Election Commission , 105 M.S.P.R.
677, ¶ 53 (2007); see Douglas, 5 M.S.P.R. at 305-06 (articulating a nonexhaustive
list of 12 factors that are relevant in assessing the appropriate penalty for an act
of misconduct).2 In making this determination, the Board must give due
deference 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
2 Although TSA employees are not subject to the provisions of chapter 75 of Title 5 of
the U.S. Code, see Winlock v. Department of Homeland Security , 110 M.S.P.R. 521, ¶ 5
(2009), aff’d, 370 F. App’x 119 (Fed. Cir. 2010), the Board has traditionally looked to
the case law interpreting Douglas to analyze the penalty in TSA cases, and we do so
here, see Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶¶ 17-23 (2014).3
properly exercised. Pinegar, 105 M.S.P.R. 677, ¶ 53. The Board will modify or
mitigate an agency -imposed penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty clearly exceeds the bounds of
reasonableness. Id.
On review, the appellant disagrees with the administrative judge’s finding
that the deciding official appropriately weighed the Douglas factors and asserts
that the administrative judge should have mitigated the penalty to a 30-day
suspension. PFR File, Tab 1 at 8-9. In particular, he asserts that he showed
potential for rehabilitation because he worked without incident during the
agency’s investigation of his misconduct. Id. at 5, 8-9. However, we agree with
the administrative judge that the record reflects that the deciding official
considered the relevant factors, including, among others, the nature and
seriousness of the offense. ID at 12; see Singh v. U.S. Postal Service ,
2022 MSPB 15, ¶ 18 (noting that the nature and seriousness of the offense, and its
relation to the employee’s duties, position, and responsibility, is the most
important factor in assessing the reasonableness of the penalty). The
administrative judge found that the deciding official considered that the appellant
held a law enforcement position and was therefore subject to a higher standard of
conduct as well as that the text messages that he sent were highly offensive and
inconsistent with workplace policies and posed a potential for Giglio
impairment.3 ID at 12. Additionally, the record reflects that the deciding official
considered the volume and repeated nature of the text messages and did not
believe that the appellant expressed genuine remorse for his misconduct or
understood the seriousness or offensiveness of his disparaging text messages.
3 Under Giglio v. United States , 405 U.S. 150 (1972), investigative agencies must turn
over to prosecutors any potential impeachment evidence concerning the agents involved
in the case. Solis v. Department of Justice , 117 M.S.P.R. 458, ¶ 4 n.1 (2012). The
prosecutor will then exercise discretion regarding whether the impeachment evidence
must be turned over to the defense. Id. Such potential impeachment evidence may
render an agent’s testimony to be of marginal value and place at risk any case that relies
on such testimony. Id.4
Hearing Transcript (HT) at 9-11; IAF, Tab 6 at 14. Thus, although the appellant
may disagree with the removal penalty, we discern no error in the administrative
judge’s determination that the agency’s selected penalty was entitled to
deference. 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 the
administrative judge 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).
On review, the appellant disputes the consistency of the penalty and argues
that approximately 10 other FAMs engaged in the same improper text messaging
but only he and another FAM were removed, whereas a third FAM received a
5-day suspension and the others were not disciplined at all. PFR File, Tab 1
at 6-7. For an employee to be deemed comparable for purposes of penalty, his
misconduct and/or other circumstances must closely resemble those of the
appellant. Singh, 2022 MSPB 15, ¶ 13. Although the appellant cites to several
examples of inappropriate text messages that he contends were sent by other
FAMs, he does not identify which FAM sent which text messages. PFR File,
Tab 1 at 6-7. Nonetheless, having reviewed the record, we find that these alleged
comparators did not engage in misconduct substantially similar to the appellant’s
because, although three other FAMs may have also sent inappropriate text
messages, the frequency of any such misconduct appears to have been far more
limited than the appellant’s misconduct. IAF, Tab 6 at 158, 164, 168-69.
Likewise, regarding the FAM who received a 5-day suspension, the record
reflects that his misconduct consisted of sending one inappropriate text message,
failing to follow agency policy, and engaging in one instance of discourteous
conduct toward his supervisor. IAF, Tab 11 at 23-26. We find such misconduct
is not similar in nature and seriousness to the appellant’s conduct.
Having considered the relevant Douglas factors, we agree with the
administrative judge that removal is a reasonable penalty under the5
circumstances. See Wilson v. Department of Justice , 68 M.S.P.R. 303, 310-11
(1995) (sustaining the appellant’s removal based on a charge of disrespectful
conduct and use of insulting abusive language to others, and noting that the use of
insulting or abusive language to others is serious and unacceptable and that the
Board has upheld removals for such misconduct); cf. Batten v. U.S. Postal
Service, 101 M.S.P.R. 222, ¶ 14 (noting that the Board has held that removal is a
proper penalty when a supervisor makes inappropriate comments of a sexual
nature to coworkers), aff’d, 208 F. App’x 868 (Fed. Cir. 2006).
The appellant’s remaining arguments do not provide a basis for reversal.
On review, the appellant asserts that the administrative judge improperly
excluded relevant testimony from the deciding official concerning the consistency
of the penalty and the appellant’s potential for rehabilitation. PFR File, Tab 1
at 5-7. He further asserts that agency counsel made improper speaking objections
during the hearing that unduly prejudiced his right to a fair hearing. Id. at 5-6. It
is well settled that an administrative judge has broad discretion to control the
course of the hearing before her. Lopes v. Department of the Navy , 119 M.S.P.R.
106, ¶ 9 (2012). Rulings regarding the exclusion of evidence are subject to
review by the Board under an abuse of discretion standard. Id., ¶ 11. We have
reviewed the record and find that the limits placed on the appellant’s questioning
of witnesses were within the administrative judge’s broad discretion to control the
hearing. 5 C.F.R. § 1201.41(b)(6); see, e.g., Tisdell v. Department of the Air
Force, 94 M.S.P.R. 44, ¶ 13 (2003) (stating that an administrative judge has wide
discretion to control the proceedings before him, to receive relevant evidence, and
to ensure that the record on significant issues is fully developed); Miller v.
Department of Defense , 85 M.S.P.R. 310, ¶ 8 (2000) (stating that an
administrative judge has wide discretion to control the proceedings, including
authority to exclude testimony he believes would be irrelevant or immaterial).
Finally, the appellant argues that the Office of Professional Responsibility
(OPR) drafted the decision letter for the deciding official, demonstrating that the6
deciding official disregarded his obligation to undertake an independent review of
the appellant’s case. PFR File, Tab 1 at 8. We disagree. Although the deciding
official testified that the decision letter was drafted by OPR, he also testified that
he provided the content through a conversation with OPR and that the content and
decision were his and his alone. HT at 39-40. Thus, the record reflects that the
removal decision was made by the deciding official. See Fontes v. Department of
Transportation, 51 M.S.P.R. 655, 668 (1991) (stating that the ultimate decision
sustaining a proposed disciplinary action must be made by the person deemed as
the deciding official and not by some other individual); see also Kelly v.
Department of the Army , 121 M.S.P.R. 408, ¶ 9 (2014) (disagreeing with the
appellant’s assertion that the deciding official simply followed the orders he was
given and could not make an independent judgment and finding that the agency’s
procedures therefore satisfied the requirements of due process).
Accordingly, we affirm the initial decision as modified.
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
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
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S.420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 9
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Egetoe_RobertoSF-0752-19-0586-I-1__Final_Order.pdf | 2024-07-23 | ROBERTO EGETOE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-19-0586-I-1, July 23, 2024 | SF-0752-19-0586-I-1 | NP |
891 | https://www.mspb.gov/decisions/nonprecedential/Harrison_LorenzoDC-0752-22-0473-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORENZO HARRISON, JR.,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-22-0473-I-1
DATE: July 23, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald Quinn , Esquire, Severna Park, Maryland, for the appellant.
Lauren Adkins , Esquire, and Nariea K. Nelson , Esquire, Alexandria,
Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. On petition
for review, the appellant argues that there is a nexus between the agency’s
discrimination and his resignation, he “made a persuasive case that any
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasonable person would feel retaliated and discriminated against,” and he had no
alternative but to involuntarily resign. Petition for Review File, Tab 1 at 9-13.
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).
¶2The initial decision reflects the administrative judge’s careful consideration
of the appellant’s numerous allegations and the testimonial and documentary
evidence. The Board will not disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987). We agree with the administrative judge
that the appellant did not meet his burden to prove that his resignation was
involuntary. See, e.g., Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013)
(explaining that the appellant must prove that he lacked a meaningful choice in
the matter and it was the agency’s wrongful actions that deprived him of that2
choice). Thus, the administrative judge properly dismissed the appeal for lack of
jurisdiction.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
2 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 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).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Harrison_LorenzoDC-0752-22-0473-I-1__Final_Order.pdf | 2024-07-23 | null | DC-0752-22-0473-I-1 | NP |
892 | https://www.mspb.gov/decisions/nonprecedential/Greene_Matthew_E_DE-3330-20-0127-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-3330-20-0127-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew E. Greene , Lincoln, Nebraska, pro se.
Ryan Devine , 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
granted his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In September 2019, the agency announced a vacancy for the competitive
service position of GS-07 Supervisory Store Associate under merit promotion
procedures. Initial Appeal File (IAF), Tab 7 at 60-72. The appellant, a
preference eligible veteran, applied for the position. Id. at 42-58. However, the
agency removed the appellant’s application from consideration, and it issued a
certificate of eligibles that contained only one candidate, another preference
eligible, whom the agency ultimately selected. Id. at 31, 40.
The agency subsequently determined that it had erred in excluding the
appellant from consideration, and on October 25, 2019, it notified him of the
matter and of its intention to afford him priority consideration for the next
Supervisory Store Associate vacancy at the same location. Id. at 29. The
appellant contacted the Department of Labor (DOL). Id. at 26-27. DOL found
that the appellant’s case had merit because the agency violated his right to
compete under 5 U.S.C. § 3304(f)(1), and the agency admitted as much. Id.
at 17-18, 23-24. DOL advised the agency that the proper remedy would be to2
remove the selectee from the Supervisory Store Associate position and
reconstruct the hiring process. Id. at 17. The agency declined, stating that
priority consideration was the more appropriate remedy. Id. at 13, 15. Thus,
DOL was unable to resolve the appellant’s complaint, and it notified the appellant
of his right to file a Board appeal. IAF, Tab 1 at 4.
The appellant timely filed the instant VEOA appeal, and after the record
closed, the administrative judge issued an initial decision granting corrective
action on the merits. IAF, Tab 1, Tab 15, Initial Decision (ID). She ordered the
agency to reconstruct the selection process. ID at 5.
The appellant has filed a petition for review, seeking to modify the
administrative judge’s relief order. Petition for Review (PFR) File, Tab 1. The
agency has not filed a response.
ANALYSIS
On petition for review, the appellant has raised two concerns about the
efficacy of any reconstructed selection process, both stemming from the fact that
the original selectee has now been working in the Supervisory Store Associate
position for some time. First, the appellant is concerned that the experience that
the original selectee has gained in the interim might be considered in the
reconstructed selection, thereby putting the appellant at an unfair disadvantage.
PFR File, Tab 4-5. Second, the appellant is concerned that store management
will not be open to selecting him over their original selectee in any case. Id. at 4.
The appellant therefore requests that the administrative judge’s relief order be
modified to require that the selection be made by an individual who is not part of
store management and to prevent the selecting official from considering training
and experience that the original selectee gained during the pendency of the instant
appeal. Id. at 6.
We have considered the appellant’s argument, but we find nothing wrong
with the language of the administrative judge’s order. The order was nonspecific3
about exactly what the agency needs to do in order to reconstruct the selection
process, ID at 5, but this is fairly standard ordering language in VEOA appeals,
see, e.g., Weed v. Social Security Administration , 107 M.S.P.R. 142, ¶ 15 (2007);
Olson v. Department of Veterans Affairs , 100 M.S.P.R. 322, ¶ 11 (2005). The
Board will sometimes give an agency more specific instructions, but this is
normally only after the Board has found the agency to be in noncompliance with
the original order. See, e.g., Phillips v. Department of the Navy , 114 M.S.P.R.
19, ¶¶ 21-22 (2010); Williams v. Department of the Air Force , 110 M.S.P.R. 451,
¶¶ 16-17 (2009). This approach allows for greater flexibility for the parties to
agree on a mutually beneficial approach to compliance, consistent with the
particular circumstances of their case, before further involving the Board in the
matter. In this regard, we note that the arguments that the appellant is raising on
petition for review would arguably be more appropriate for him to raise in a
petition for enforcement if, after the agency reconstructs the selection process, he
believes that the reconstruction was somehow deficient. See generally, 5 C.F.R.
part 1201, subpart F (regulations pertaining to enforcement of final decisions and
orders). For these reasons, we decline to modify the ordering language of the
initial decision.
In so ruling, we are mindful that, in refusing to reconstruct the selection
process at the behest of DOL, the agency relied on the Defense Commissary
Agency’s Merit Staffing Plan Manual, which provides for priority placement
consideration in cases like this one. IAF, Tab 7 at 15, 76. The agency is
reminded that its own internal policies and procedures do not override the law,
which requires reconstruction of the original selection process. See
Montgomery v. Department of Health and Human Services , 123 M.S.P.R. 216, ¶ 9
(2016); Modeste v. Department of Veterans Affairs , 121 M.S.P.R. 254, ¶ 13
(2014). The agency is further reminded that, in order to properly reconstruct the
selection process, it must conduct an actual selection process based on the same
circumstances surrounding the original faulty selection. This includes taking the4
original selectee out of the position, conducting and evaluating interviews so that
they are meaningfully comparable with the original selectee’s interview, and
filling the same number of vacancies as before. Russell v. Department of Health
and Human Services , 120 M.S.P.R. 42, ¶ 13 (2013). If in doubt about the
requirements for a reconstructed selection process, the agency should consult the
Board’s case law for guidance.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Greene_Matthew_E_DE-3330-20-0127-I-1__Final_Order.pdf | 2024-07-22 | MATTHEW E. GREENE v. DEPARTMENT OF DEFENSE, MSPB Docket No. DE-3330-20-0127-I-1, July 22, 2024 | DE-3330-20-0127-I-1 | NP |
893 | https://www.mspb.gov/decisions/nonprecedential/Magana_BeatrizSF-0752-19-0141-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BEATRIZ MAGANA,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
SF-0752-19-0141-I-2
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Susan Tylar , Esquire, Syosset, New York, for the appellant.
Holly Kay Botes , Jennifer Kehe , and Katherin Smith , APO, Armed Forces
Pacific, 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 constructive removal appeal for lack of jurisdiction. On petition
for review, the appellant asserts that her resignation was involuntary and that the
administrative judge failed to consider several facts in dismissing the appeal. 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).
also contends that the administrative judge committed an abuse of discretion in
failing to extend the discovery deadline. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 We deny the agency’s motion to dismiss the appellant’s petition for review as
untimely filed. Given the impact on the appellant’s representative of the COVID-19
pandemic in April 2020, inopportune internet connectivity problems at the time of
filing, the minimal length of the delay (approximately 20 minutes), and the lack of
prejudice to the agency, we find that the appellant has shown good cause for the
untimely filing. See Social Security Administration v. Price , 94 M.S.P.R. 337 ¶ 7
(2003), aff’d, 398 F.3d 1322 (Fed. Cir. 2005) .
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Magana_BeatrizSF-0752-19-0141-I-2__Final_Order.pdf | 2024-07-22 | BEATRIZ MAGANA v. DEPARTMENT OF DEFENSE, MSPB Docket No. SF-0752-19-0141-I-2, July 22, 2024 | SF-0752-19-0141-I-2 | NP |
894 | https://www.mspb.gov/decisions/nonprecedential/Gallegos_RolandoDA-3443-20-0145-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROLANDO GALLEGOS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-3443-20-0145-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rolando Gallegos , Laredo, Texas, pro se.
Ara Cantu , Esquire, Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal concerning the grade level at which
he was appointed. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings 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).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED as
to the basis for determining that the Board does not have jurisdiction over an
employment practice and to find that the appellant was not subjected to a
suitability action, we AFFIRM the initial decision.
BACKGROUND
Prior to this appeal, the appellant was a Federal employee from 1988 until
1991. Initial Appeal File (IAF), Tab 1 at 7. In 2015, he applied for a competitive
service “Writer/Editor” vacancy with the agency’s Customs and Border
Protection, which was posted at the GS-12 level. IAF, Tab 1 at 8-9, 26, Tab 3
at 6. The agency extended him a tentative offer for the vacancy, which he
accepted. IAF, Tab 1 at 5, 8-9, 26. However, the agency subsequently
determined that the appellant’s selection was in error because he was “outside the
area of consideration” for the vacancy. Id. at 5, 18, 27-28. Further, in making
the offer at the GS-12 level, the agency had assumed the appellant had previously
served in a position at the GS-12 level, which was also in error. Id. at 21, 26-28.
After realizing its mistakes, the agency offered to reinstate the appellant to the
Federal service in the position of Writer/Editor at his prior GS-9 level, and he
was so reinstated, effective January 9, 2017. Id. at 5, 7, 24, 28. The2
determination as to the level of this offer was based on his “time-in-grade,” in
other words, the fact that his prior service was at the GS-9 level. Id. at 5.
The appellant subsequently filed this appeal, alleging, among other things,
that the agency and the Office of Personnel Management (OPM) applied an
employment practice to his appointment that violated a basic requirement of
5 C.F.R. § 300.103. IAF, Tab 1 at 5, Tab 5 at 4. He essentially contested the
agency’s decision to appoint him at the GS-9, instead of the GS-12, level. IAF,
Tab 5 at 4.
The administrative judge subsequently issued an initial decision,
dismissing the appeal for lack of Board jurisdiction. IAF, Tab 9, Initial Decision
(ID) at 1. The administrative judge first found that the appellant failed to
establish any of the exceptions to the general principle that an agency’s failure to
select an applicant for a vacant position is not appealable to the Board. ID at 5.
The administrative judge further found that the offer at a lower GS level was not
an adverse action and was not an appealable withdrawal of a tentative offer
because the appointment to the GS 12 vacancy never actually occurred. ID at 9-
11. Finally, the administrative judge found that the appellant failed to
demonstrate any OPM involvement sufficient to establish jurisdiction over any
alleged employment practices. ID at 6-9.
The appellant has filed a petition for review, arguing that he was appointed
to the GS-12 vacancy, the decision to offer him reinstatement at a lower GS level
was a suitability action, and he was subject to an employment practice. Petition
for Review (PFR) File, Tab 1 at 4-9. The agency has responded to his petition for
review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant did not allege jurisdiction
under the Uniformed Services Employment and Reemployment Rights Act of
1994, the Veterans Employment Opportunities Act of 1998, or whistleblower3
reprisal statutes. ID at 5. The administrative judge also found that the appellant
had not suffered an appealable adverse action. ID at 9-10. The parties do not
challenge these findings on review, and we decline to disturb them.
The administrative judge correctly held that the appellant did not establish
jurisdiction over his employment practices claim.
An applicant for employment who believes that an employment practice
applied to him violates a basic requirement in 5 C.F.R. § 300.103 is entitled to
appeal to the Board. Sauser v. Department of Veterans Affairs , 113 M.S.P.R.
403, ¶ 6 (2010); 5 C.F.R. § 300.104(a). The Board has jurisdiction under
§ 300.104(a) when the following two conditions are met: (1) the appeal concerns
an employment practice that OPM is involved in administering; and (2) the
appellant makes a nonfrivolous allegation that the employment practice violated
one of the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103. Sauser, 113 M.S.P.R. 403, ¶ 6.
The appellant on review argues that OPM was involved in the
determination that he was not qualified for the position at the GS-12 level but was
qualified at the GS-9 level. PFR File, Tab 1 at 5-8. The administrative judge
held that the appellant failed to demonstrate sufficient OPM involvement in the
agency’s use of time-in-grade requirements. ID at 8-9. The appellant disputes
this finding. PFR File, Tab 1 at 6-8. We disagree with the administrative judge,
and modify the initial decision accordingly.
OPM need not be immediately involved in the practice in question; rather,
an agency’s misapplication of a valid OPM requirement may constitute an
employment practice. Sauser, 113 M.S.P.R. 403, ¶ 7. The record here is devoid
of almost all of the agency’s hiring documents. However, it appears that the
agency determined that the appellant was unqualified for the position at the
GS-12 level based on its application of OPM’s standards. For instance, OPM’s
regulations set forth the rules for setting the pay rate for a reemployed individual
with previous civilian service in the Federal Government. 5 C.F.R.4
§§ 531.211(b), 531.212. Moreover, OPM’s regulations at 5 C.F.R. part 300,
subpart F, set forth the applicability and rules regarding time-in-grade restrictions
for advancement. Indeed, an agency memorandum regarding the appellant’s
request for a desk audit after he was appointed cites to 5 C.F.R. § 335.103(c)(1)
(vi), which states that merit promotion requirements apply when a former
employee is reinstated at a higher level than previously held. IAF, Tab 1 at 28.
Further, although not decided by the administrative judge, we determine
that the appellant has established that his appeal concerns an employment
practice. ID at 9. Specifically, as occurred here, “the application of
time-in-grade restrictions is an employment practice.”2 Dowd v. United States ,
713 F.2d 720, 724 (Fed. Cir. 1983). Accordingly, we modify the initial decision
to find that the appellant has satisfied the first prong of the jurisdictional test.
See Sauser, 113 M.S.P.R. 403, ¶ 8 (finding the first prong satisfied when an
agency applied OPM’s qualification standards to determine the appellant was
unqualified for the GS 11 level).
While we modify the initial decision to find that the appellant met the first
prong of the jurisdictional test for an employment practices claim, the
administrative judge’s error provides no basis for reversal of the initial decision.
As discussed below, the appellant does not meet the second prong of the test.
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision). As to the second prong of
the jurisdictional test, the appellant argues that the offer of a position at the GS-9
level, instead of the GS-12 level, violated the basic requirements of 5 C.F.R.
§ 300.103. PFR File, Tab 1 at 6. His arguments specifically involve the
2 We also assume for purposes of our analysis, without deciding, that the agency’s
determination of the area of consideration of the position is an employment practice.
See Saya v. Department of the Air Force , 68 M.S.P.R. 493, 496-97 (1995) (assuming
without deciding that a policy concerning the area of consideration for a position is an
employment practice implementing 5 C.F.R. § 300.103).5
assertion that he met the requisite qualifications of the job posting at the GS-12
level. Id. The administrative judge did not specifically address this issue.
Accordingly, we do so now.
Under the second prong, an appellant establishes jurisdiction over his
appeal by making a nonfrivolous allegation that the employment practice violated
one of the “basic requirements” for employment practices set forth in 5 C.F.R.
§ 300.103. Sauser, 113 M.S.P.R. 403, ¶ 6. These basic requirements include the
requirement that a job analysis be used to identify important factors in evaluating
candidates, and that the employment practice have a “rational relationship” to
performance in the job. Id.; 5 C.F.R. § 300.103(a), (b)(1). The appellant is not
challenging the validity or applicability of the agency’s determination that he was
not within the area of consideration for the GS-12 vacancy announcement and did
not meet the time -in-grade requirements for a GS-12 position.3 IAF, Tab 1 at 5.
Rather, he is arguing that the agency and OPM should have found him qualified
for the GS-12 Writer/Editor vacancy announcement because he met the
“minimum requirements” and “qualifications” of the position. IAF, Tab 5 at 5;
PFR File, Tab 1 at 5-6. The vacancy announcement lists the requirements and
qualifications as certain writing and editing experience, ability to “pass a
background investigation,” registration for the Selective Service, and residency in
the United States. IAF, Tab 1 at 12-13. However, as explained above, the agency
did not determine that the appellant was ineligible for the GS-12 vacancy, or that
he was eligible only for a GS-9 reinstatement, based on these factors. Rather, its
determination was based on the area of consideration and time-in-grade.
The appellant is, at most, seeking an exception for himself to the agency’s
application of the limitations related to the area of consideration and
3 Neither party has explained why the appellant was outside the “area of consideration”
for the GS-12 position. E.g., IAF, Tab 1 at 5, Tab 8 at 13-14; PFR File, Tab 1 at 8.
However, because the appellant has not alleged that this limitation did not apply to him
or that the agency’s determination that he was outside the area of consideration was in
error, we discern no basis to review it here. 6
time-in-grade for the GS-12 vacancy announcement. The Board lacks jurisdiction
over such a claim. See Richardson v. Department of Defense , 78 M.S.P.R. 58, 61
(1998) (finding that the Board lacked jurisdiction over an employment practices
appeal in which an appellant failed to identify any basic requirement that was
missing from the instrument that the agency used to evaluate her application, and
instead, merely contested the agency’s handling and rating of her individual
application); Banks v. Department of Agriculture , 59 M.S.P.R. 157, 160 (1993)
(finding that an appellant’s allegations that an agency failed to fully consider his
education and experience in making a selection for a position did not establish
jurisdiction over an employment practices claim), aff’d per curiam , 26 F.3d 140
(Fed. Cir. 1994) (Table). Accordingly, we agree with the administrative judge
that the Board lacks jurisdiction over this claim, as modified above.
The appellant’s remaining arguments on review do not establish jurisdiction.
The appellant argues that the decision to offer reinstatement at the GS-9
level instead of the position to which he applied at the GS-12 level is an
appealable suitability action. PFR File, Tab 1 at 4-5. The administrative judge
did not address this argument. We modify the initial decision to find the
appellant’s argument unpersuasive. Because we find that the appellant did not
establish jurisdiction over a suitability action, any error by the administrative
judge in failing to address this claim does not require reversal. See Panter,
22 M.S.P.R. at 282.
The Board has jurisdiction over a negative suitability determination that
results in a suitability action, defined as a removal, cancellation of eligibility,
cancellation of reinstatement eligibility, or debarment. Ricci v. Merit Systems
Protection Board , 953 F.3d 753, 756-57 (Fed. Cir. 2020); 5 C.F.R. §§ 731.203(a),
731.501(a). A nonselection for a particular position is not an appealable
suitability action. Ricci, 953 F.3d at 757; 5 C.F.R. § 731.203(b). The agency’s
decision to rescind its tentative offer of employment, and offer reinstatement at a
lower GS level, is thus not a suitability action that can be appealed to the Board.7
See Ricci, 953 F.3d at 757 (finding an agency’s decision to rescind a tentative
offer of employment was not an appealable suitability action).
The appellant also argues that he was formally appointed to the position
because he accepted the tentative offer. PFR File, Tab 1 at 8-9. The
administrative judge held that the appointment at the GS-12 level never actually
occurred. ID at 12. We agree. To establish Board jurisdiction over the
cancellation of a promotion or appointment, offer and acceptance alone is not
sufficient. Instead, the appellant must show that the promotion or appointment
was not revoked before the appellant actually performed in the position. Sapla v.
Department of the Navy , 118 M.S.P.R. 551, ¶ 9 (2012). The appellant has not
alleged that he served in the GS-12 position; instead, he has been employed in a
GS-9 position with the agency. IAF, Tab 1 at 5. Therefore, the appellant cannot
establish Board jurisdiction over the decision not to appoint him.
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
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
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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: 10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If 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. 11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Gallegos_RolandoDA-3443-20-0145-I-1__Final_Order.pdf | 2024-07-22 | ROLANDO GALLEGOS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-3443-20-0145-I-1, July 22, 2024 | DA-3443-20-0145-I-1 | NP |
895 | https://www.mspb.gov/decisions/nonprecedential/Mosley_Tonya_R_SF-0752-23-0252-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONYA R. MOSLEY,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
SF-0752-23-0252-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tonya R. Mosley , Palm Desert, California, pro se.
Dallae Chin , Esquire, and Bridget Park , 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
reversed the agency’s probationary termination action for lack of due process
because the appellant was a tenured employee. On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
appellant reraises her affirmative defenses and request for compensatory damages,
and she argues that the administrative judge failed to address all her allegations of
agency wrongdoing. She also reraises her various motions and objections made
below, including, among others, her motions for the disqualification of the
administrative judge, her motions for the disqualification of agency
representatives, and her objection to the close of the record.
¶2Generally, 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).
¶3We also deny the appellant’s request for enforcement of the administrative
judge’s interim relief order, Petition for Review (PFR) File, Tabs 14, 16, as well
as the agency’s request for a status conference concerning its implementation,
2 The appellant has moved to file a supplemental pleading based on her receipt of her
deposition transcript, which was taken by the agency prior to the issuance of the initial
decision but not made available to her until after the close of the record below. Petition
for Review File, Tab 9 at 4, Tab 11; Initial Appeal File, Tab 58. We deny the
appellant’s motion because she has not shown that her deposition transcript contained
new and material evidence that she could not present in another format below.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); see also Spivey v.
Department of Justice , 2022 MSPB 24, ¶ 15; Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980).
3
PFR File, Tab 20. The Board generally does not entertain interim compliance
proceedings. See Owens v. Department of Homeland Security , 2023 MSPB 7, ¶ 9;
Ginocchi v. Department of the Treasury , 53 M.S.P.R. 62, 71 n.6 (1992). If,
following the Board’s Final Order in this case, the appellant believes that the
agency is in noncompliance, she may file a petition for enforcement in
accordance with the instructions provided below. Owens, 2023 MSPB 7, ¶ 10;
5 C.F.R. § 1201.182(a).
ORDER
¶4We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective March 9, 2023. 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.
¶5We 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.
¶6We 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).
¶7No 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
4
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).
¶8For 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.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
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.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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.
DEFENSE FINANCE AND ACCOUNTING
SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid
by vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the
ticket comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1 -7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
2 | Mosley_Tonya_R_SF-0752-23-0252-I-1__Final_Order.pdf | 2024-07-22 | TONYA R. MOSLEY v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. SF-0752-23-0252-I-1, July 22, 2024 | SF-0752-23-0252-I-1 | NP |
896 | https://www.mspb.gov/decisions/nonprecedential/Kemmerer_MichaelDC-0752-22-0321-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL KEMMERER,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-0752-22-0321-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda L. E. Smith , Esquire, Buffalo, New York, for the appellant.
Adam W. Boyer , Esquire, and Lynn M. Stoppy , Esquire, Kansas City,
Kansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his demotion. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved the merits of its
adverse action case and in denying his association-based sexual orientation
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 claim. He also disagrees with the administrative judge’s
determination that the agency proved nexus and the reasonableness of the
demotion penalty. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.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
2 The appellant argues that the administrative judge erroneously denied two witnesses
who would have supported his discrimination claim. Petition for Review (PFR) File,
Tab 1 at 18-20. In arguing that the administrative judge erred in denying one of the two
witnesses, the appellant relies on a declaration of the witness which he submits for the
first time on review. PFR File, Tab 1 at 19, 109-16. The appellant does not show this
declaration was unavailable before the record closed below despite due diligence, and
therefore we need not consider it. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). In any event, even if the information in the declaration had been timely
submitted, the outcome of the appeal would not have differed. The witness’ assertion in
the declaration that the appellant was demoted based on his wife’s sexual orientation is
based on speculation and little else. PFR File, Tab 1 at 112-15.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Kemmerer_MichaelDC-0752-22-0321-I-1__Final_Order.pdf | 2024-07-22 | MICHAEL KEMMERER v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-0752-22-0321-I-1, July 22, 2024 | DC-0752-22-0321-I-1 | NP |
897 | https://www.mspb.gov/decisions/nonprecedential/Martindale_Stephanie_A_AT-3443-19-0678-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE A. MARTINDALE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-3443-19-0678-I-1
DATE: July 22, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jacob N. Hill, Jr. , Madison, Alabama, for the appellant.
Erika McPherson , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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).
REMAND the case to the Atlanta Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant was a Human Resources (HR) Specialist at the GS-12 level at
the agency’s Redstone Civilian Personnel Advisory Center (CPAC). Initial
Appeal File (IAF), Tab 9 at 6, 13. According to the appellant, in September and
October 2015, she found certain employees not to be qualified for positions in a
new cell created by the Director of Human Resources to perform CPAC functions
for the Army Aviation and Missile Command (AMCOM). IAF, Tab 1 at 5, Tab 9
at 4-5, 7-12. The appellant alleged below that this HR Director waived the
qualifications in order to place employees in the positions in question. IAF, Tab
1 at 5, Tab 9 at 4, 9. The appellant further alleged that she subsequently
“received unfavorable actions and reprisals” from the HR Director. IAF, Tab 1
at 5.
The appellant later applied for, was offered, and accepted a position of
Human Capital Management Specialist in AMCOM’s Security Assistance
Management Directorate (SAMD), also at the GS-12 level. Id. at 5, 29. On
January 17, 2017, the HR Director advised SAMD that it should have posted the
Human Capital Management Specialist vacancy for which it selected the appellant
as a GS-9 or GS-11 position, and that the GS-12 level was too high for the job
requirements. Id. at 26-27. SAMD agreed. Id. at 26. By letter dated January 18,
2017, prior to the effective date of the appellant’s reassignment, the agency
informed her that it was rescinding the job offer. Id. at 25, 33.
In October 2017, the agency reduced the appellant’s grade to a GS-11, with
a corresponding change in job title to Workforce Development Specialist. IAF,
Tab 9 at 6. This resulted in a reduction in her basic rate of pay by $5,152. Id.
The appellant indicated that she competed for the position, but should have been
given “safe pay.” IAF, Tab 15 at 4. The agency asserted that the appellant did2
not compete for the position, but rather accepted a voluntary downgrade. IAF,
Tab 9 at 13, Tab 14 at 6-7.
At some point in time following the agency’s rescission of her job offer,
the appellant filed a complaint with the Office of Special Counsel (OSC), alleging
that the agency committed prohibited personnel practices when it rescinded the
job offer. IAF, Tab 1 at 12. The specific prohibited personnel practices included
discrimination based on race and sex, and reprisal for her prior equal employment
opportunity (EEO) activity. Id. She subsequently alleged to OSC that the HR
Director abused her authority by advising management to lower the appellant’s
grade from a GS-12 to a GS-11, “which affected [her] pay.” Id. at 8. On June 27,
2019, OSC closed its inquiry into the appellant’s allegations. Id. at 7.
In the meantime, the appellant contacted the agency’s EEO office in
December 2018. Id. at 16-19. Although not entirely clear, she appeared to allege
that the HR Director violated the settlement of the appellant’s prior EEO case by
requesting that SAMD withdraw its job offer in January 2017. Id.
She subsequently filed a Board appeal. IAF, Tab 1. She asserted that other
employees, who were all white, stayed at their grade level, while the agency
lowered hers under the guidance of the HR Director. Id. at 5. In addition to race
discrimination, she alleged discrimination based on sex and reprisal for
participating in the EEO process. Id. She also alleged that the agency failed to
abide by the terms of a prior settlement agreement. Id.
The administrative judge issued an order to the appellant to show cause
why her claims should not be dismissed for lack of jurisdiction. IAF, Tab 6. He
explained that the Board does not have independent jurisdiction over EEO
discrimination and retaliation claims. Id. at 1-2. He advised the appellant that
the Board would not have jurisdiction over her EEO activity in an individual right
of action (IRA) appeal unless such activity “concern[ed] alleged violations of
5 U.S.C. [§] 2302(b)(8).” Id. at 3. The order did not advise the appellant of the
other types of protected activities over which the Board has IRA jurisdiction or3
the remaining elements required to establish such jurisdiction. It also did not
advise the appellant as to how to establish jurisdiction over a chapter 75 appeal.
The appellant responded to the order, and raised a claim that the HR
Director retaliated against her for making protected disclosures. IAF, Tab 9 at 4.
The agency also responded to the order, and the appellant replied. IAF, Tabs 14-
16. Following these responses, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID)
at 1, 9. He found that the January 2017 rescission of the appellant’s job offer was
not an adverse action within the Board’s chapter 75 jurisdiction. ID at 4-5. He
reasoned that the withdrawal of the job offer was not a demotion because the
offered position would not have been a promotion and, in any event, the appellant
never served in the job. Id. He stated that the appellant’s subsequent October
2017 reduction in grade from a GS-12 to a GS-11 was “not the subject of her
appeal to the Board,” and, in any event, the appellant did not dispute the agency’s
assertion that the reassignment was voluntary. ID at 5 n.1; IAF, Tab 14 at 6-7.
The administrative judge then analyzed the appellant’s claims as a potential
IRA appeal. He found, however, that there was no evidence that the appellant
raised an allegation of reprisal for whistleblowing to OSC in relation to the
rescission of her job offer. ID at 6. He thus found that she failed to exhaust her
administrative remedies with OSC. ID at 6-7. As to her claim of discrimination
and reprisal for EEO activity, the administrative judge held that such claims are
not independent bases for Board jurisdiction. ID at 7-9. Finally, concerning the
appellant’s claim that the HR Director abused her authority, the administrative
judge found that such a prohibited personnel practice is not an independent source
of jurisdiction absent an otherwise appealable action. ID at 9.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 3, 5. In her reply to the agency’s response,
the appellant alleges that under 5 U.S.C. § 7512, her October 2017 reduction in
grade and pay is action within the Board’s jurisdiction. PFR File, Tab 6 at 5.4
DISCUSSION OF ARGUMENTS ON REVIEW
We remand this appeal for a new determination as to whether the appellant
established IRA jurisdiction over her appeal.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosures 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 disclosures 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 appellant alleged below that she was retaliated against for making
protected whistleblowing disclosures, i.e., reprisal for engaging in activity under
section 2302(b)(8). IAF, Tab 9 at 4. We find that we must remand this claim for
further adjudication.
An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643 -44 (Fed. Cir. 1985). This includes not only advising an
appellant of her burden of proof, but also explaining how she can show that she
satisfied that burden. Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 9 (2011). Thus, she should have received explicit information as to how to
establish jurisdiction over her whistleblower reprisal claim. We must remand so
that she receives adequate notice regarding the exhaustion or other jurisdictional
elements of an IRA.
An administrative judge’s failure to provide an appellant with proper
Burgess notice can be cured if the agency’s pleadings contain the notice that was
lacking in the order, or if the initial decision itself puts the appellant on notice of
what she must do to establish jurisdiction, thus affording her the opportunity to
meet her jurisdictional burden in the petition for review. Mapstone v. Department5
of the Interior, 106 M.S.P.R. 691, ¶ 9 (2007), modified on other grounds by
Mapstone v. Department of the Interior , 110 M.S.P.R. 122, ¶ 7 (2008). Here, the
agency’s submissions did not set out the appellant’s jurisdictional burden. IAF,
Tabs 14, 16.
Although the administrative judge’s order to show cause did not contain
sufficient notice, IAF, Tab 6, the administrative judge provided some additional
notice in the initial decision, indicating that the appellant “must show that she
brought her whistleblower complaint to the attention of OSC.” ID at 6.
However, sufficient notice needs to advise the appellant of her burden to prove
exhaustion by preponderant evidence or explain how she could demonstrate
exhaustion. For example, sufficient notice should explain that an appellant may
demonstrate exhaustion through her initial OSC complaint, evidence that she
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations, and her
written responses to OSC referencing the amended allegations.2 Mason,
116 M.S.P.R. 135, ¶ 8. The appellant here provided OSC’s determination and
close-out letters, and email correspondence between her and OSC. IAF, Tab 1
at 7-14. However, she did not provide, or have reason to know to provide, other
materials or sworn statements related to her OSC complaint.
The initial decision also did not explain the other elements of the
appellant’s jurisdictional burden. For example, it did not explain to the appellant
that to establish jurisdiction for a protected disclosure under section 2302(b)(8),
she was required to nonfrivolously allege that she made a disclosure that she
reasonably believed evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. ID at 6-7; Mason, 116 M.S.P.R.
135, ¶ 17.
2 Submission of the complaint form, however, is not a requirement for proving
exhaustion. Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 9 n.3 (2016).6
On remand, the administrative judge should provide the requisite Burgess
notice and give the appellant an opportunity to meet her jurisdictional burden as
to her claim of whistleblower reprisal. If the appellant does meet her
jurisdictional burden, the administrative judge should adjudicate the IRA appeal
on the merits. Mason, 116 M.S.P.R. 135, ¶ 7 (explaining that if an appellant
establishes Board jurisdiction over his IRA appeal by exhausting his remedies
before OSC and making the requisite nonfrivolous allegations, he has the right to
a hearing on the merits of his claim).
On remand, the administrative judge should also provide the appellant with
Burgess notice and an opportunity to establish IRA jurisdiction over her claims of
reprisal for EEO activity. IAF, Tab 1 at 8, 12-13, 16-19. As it concerns the
appellant’s EEO activity, the Board’s IRA jurisdiction covers reprisal only for
exercising “any appeal, complaint, or grievance right . . . with regard to
remedying a violation of [section 2302(b)(8)].” 5 U.S.C. §§ 1221(a), 2302(b)(9)
(A)(i); Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir.
2020); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013).
Thus, the appellant's exercise of her right to file an EEO complaint may only be
the subject of an IRA appeal if she sought therein to remedy a violation of
5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 7. In addition, an appellant
pursuing her own personal EEO complaint, which is a matter relating solely to
discrimination, is not a protected activity within the Board's IRA jurisdiction.
Absent an allegation of reprisal for making protected disclosures on matters
unrelated to Title VII, filing an EEO claim is not protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). Edwards v. Department of Labor , 2022 MSPB 9,
¶¶ 22-25. Filing a complaint of discrimination also is not a protected activity
under 5 U.S.C. § 2302(b)(9)(B), even if the complaint alleges discrimination
against other employees. Id., ¶¶ 26-28.
Here, because the administrative judge did not explain that section 2302(b)
(8) concerns reprisal for whistleblowing, the appellant was denied an opportunity7
to nonfrivolously allege she had raised a whistleblower reprisal claim in the EEO
process. See Young, 961 F.3d at 1329 (explaining that “[s]ection 2302(b)(9)(A)(i)
covers retaliation for exercising any appeal, complaint, or grievance right relating
to whistleblowing”).
The administrative judge correctly held that the Board lacks jurisdiction under
chapter 75 over the January 2017 rescission of the appellant’s job offer.
The administrative judge found that the Board lacked jurisdiction over the
agency’s job offer rescission under chapter 75. ID at 3-5. Specifically, he
observed that the appellant’s job offer would have been a reassignment with no
reduction in grade or pay. ID at 4. He also found that the appellant failed to
nonfrivolously allege that she ever performed in the offered position. ID at 4-5.
The parties do not appear to challenge these determinations on review, and we see
no reason to disturb them. The agency’s decision to cancel the job offer did not
actually reduce the appellant’s grade or pay, and thus it was not an appealable
adverse action under chapter 75. See 5 U.S.C. § 7512(1)-(5) (setting forth the
adverse actions appealable under chapter 75); Simmons v. Department of Housing
& Urban Development , 120 M.S.P.R. 489, ¶ 4 (2014) (finding that to establish
jurisdiction over the cancellation of a promotion or appointment, the appellant
must show, among other things, that the promotion or appointment was not
revoked before she performed in the position).
The appellant is entitled to notice of how to establish jurisdiction over her
October 2017 reduction in grade and pay as an adverse or constructive adverse
action.
The administrative judge found that the appellant was not raising her
October 2017 reduction in grade from a GS-12 to a GS-11 in her Board appeal
and did not dispute the agency’s assertion that the demotion was voluntary. ID
at 5 n.1. The appellant on review alleges that the Board has jurisdiction over a
reduction in grade and pay. PFR File, Tab 6 at 5; see Morgan v. Department of
the Navy, 28 M.S.P.R. 477, 478 (1985) (explaining that the issue of Board8
jurisdiction may be raised at any time during a proceeding). Specifically, she
alleges that she held the grade of GS-12, and she applied for a GS-12 position,
but upon arrival, SAMD downgraded the position. Id.
Under chapter 75, an employee’s reduction in grade or pay may be
appealed to the Board. 5 U.S.C. §§ 7512(3)-(4), 7513(d). The appellant has the
burden of proof on the issue of jurisdiction, and when she makes a nonfrivolous
allegation of Board jurisdiction, she is entitled to a hearing on the jurisdictional
question. Lara v. Department of Homeland Security , 101 M.S.P.R. 190, ¶ 7
(2006). A nonfrivolous allegation of Board jurisdiction is an allegation of fact
which, if proven, could establish a prima facie case that the Board has jurisdiction
over the matter at issue. Id. To constitute an appealable action, the reduction in
grade or pay at issue must be involuntary. Goodwin v. Department of
Transportation, 106 M.S.P.R. 520, ¶ 12 (2007).
To the extent that the administrative judge concluded that the appellant did
not dispute the agency’s assertion that her reduction in grade and pay was
voluntary, we disagree. ID at 5 n.1. The appellant alleged below that after she
accepted the GS-12 job, “management used their authority to take [the
appellant’s] Grade from GS-12 to reassign grade of GS-11.” IAF, Tab 9 at 4.
Based on this assertion, the appellant was entitled to information regarding how
to establish chapter 75 jurisdiction over her demotion claim. See Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994) (cautioning that in determining
whether the appellant has made a nonfrivolous allegation of jurisdiction entitling
him to a hearing, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties and the agency’s evidence may not be
dispositive). However, the administrative judge did not provide this information,
and it is not contained in the initial decision or pleadings below. IAF, Tabs 6, 14,
16; ID at 3-5.
The appellant also suggested she was subjected to a constructive demotion.
Specifically, she appeared to argue that after being advised that the GS-12 offer9
was revoked, she competed for and was awarded the GS-11 position and was
therefore entitled to saved pay. IAF, Tab 15 at 4. To the extent that the agency
contradicted these assertions, we decline to weigh the evidence or arguments at
this stage of the proceeding. IAF, Tab 14 at 6-7; see Ferdon, 60 M.S.P.R. at 329.
Constructive adverse action claims generally have two things in common: (1) the
employee lacked a meaningful choice in the matter; and (2) it was the agency’s
wrongful actions that deprived the employee of that choice. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶ 8 (2013). The appellant’s allegation that she was
denied saved pay to which she was entitled was enough to require the
administrative judge to issue a notice informing her of the elements of a
constructive demotion claim. See Sage v. Department of the Army , 108 M.S.P.R.
398, ¶¶6-7 (2008) (finding an administrative judge should have given notice
regarding the elements of a constructive suspension claim when the appellant
asserted that she was forced to take leave in excess of 14 days as the result of her
supervisor’s verbal and mental abuse, she was unfairly suspended, and the agency
refused to allow her to return to her position). However, he did not do so. IAF,
Tab 6; ID at 3-5. This information is also lacking from the agency’s submissions.
IAF, Tabs 14, 16. Thus, the administrative judge on remand must provide the
appellant with information regarding the elements and burdens of her reduction in
grade and pay and constructive demotion claims.
If the administrative judge finds that the Board has jurisdiction over the
appellant’s chapter 75 claims, he may find it appropriate to address the timeliness
of the appeal. See generally Edge v. U.S. Postal Service , 113 M.S.P.R. 692, ¶¶ 7,
9 (2010) (recognizing that dismissing for untimeliness is not appropriate if the
jurisdictional and timeliness issues are inextricably intertwined, as in a
constructive suspension appeal). Further, provided the appellant filed a timely
chapter 75 appeal over which the Board has jurisdiction, the administrative judge
should address her affirmative defense of discrimination and retaliation, as well
as any other prohibited personnel practices claims she raises in connections with10
the alleged demotion. IAF, Tab 1 at 12-13; 5 U.S.C. § 7702(a); Cowart v. U.S.
Postal Service, 117 M.S.P.R. 572, ¶¶ 4-5, 8-10 (2012) (determining that the
Board must address allegations of prohibited personnel practices raised in a
chapter 75 appeal).3 In the remand initial decision, the administrative judge may
adopt his original findings regarding the agency’s January 2017 job offer
withdrawal.
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.
3 To the extent that the appellant establishes jurisdiction over both an IRA appeal and
an adverse action under chapter 75, she is entitled to an election of her remedies.
Edwards v. Department of Air Force , 120 M.S.P.R. 307, ¶ 12 (2013). Should the
appellant do so, the administrative judge must determine if she made a knowing and
informed election of remedies and, if not, allow her to make such an election. Id.11 | Martindale_Stephanie_A_AT-3443-19-0678-I-1__Remand_Order.pdf | 2024-07-22 | STEPHANIE A. MARTINDALE v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-3443-19-0678-I-1, July 22, 2024 | AT-3443-19-0678-I-1 | NP |
898 | https://www.mspb.gov/decisions/nonprecedential/Winfield_Billy_DC-1221-22-0615-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BILLY WINFIELD,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-22-0615-W-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Curtis T. Brown , Esquire, Virginia Beach, Virginia, for the appellant.
Kimberly Karle , Esquire, and Debra Mosley Evans , Esquire, Portsmouth,
Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action appeal
because he did not prove that he made a protected disclosure or engaged in 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).
protected whistleblowing activity. On petition for review, the appellant reargues
that he reported the agency’s unfair performance evaluations, unfair treatment of
him, and unfair hiring practices to his chain of command. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Winfield_Billy_DC-1221-22-0615-W-1_Final_Order.pdf | 2024-07-22 | BILLY WINFIELD v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-22-0615-W-1, July 22, 2024 | DC-1221-22-0615-W-1 | NP |
899 | https://www.mspb.gov/decisions/nonprecedential/Ballmer_Stephen_G_CH-315H-23-0238-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHEN G. BALLMER,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
CH-315H-23-0238-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephen G. Ballmer , Columbus, Ohio, pro se.
Taylor Traynoff , Esquire, and Pamela Langston-Cox , 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
dismissed his appeal of his probationary termination for lack of jurisdiction. On
petition for review, the appellant reiterates his argument regarding the merits of
his termination. For the first time on review, the appellant also raises a claim 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).
age and disability discrimination. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2For the first time on review, the appellant states that the agency terminated
him on the basis of age and disability discrimination. Petition for Review File,
Tab 1 at 6. 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 not
previously available despite the party’s due diligence. Hodges v. Office of
Personnel Management , 101 M.S.P.R. 212, ¶ 7 (2006); Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). However, the issue of jurisdiction is
always before the Board and may be raised at any time during a Board
proceeding. Poole v. Department of the Army , 117 M.S.P.R. 516, ¶ 9 (2012).
¶3Under certain circumstances, a probationary competitive service appointee
may appeal to the Board his claim that he was discriminatorily terminated
because of race, color, religion, sex, national origin, age, or disability.
See 5 C.F.R. § 315.806(d). However, the Board has jurisdiction over such a
claim only if it is has jurisdiction over one of the issues stated in 5 C.F.R.
§ 315.806(b)-(c). Id. As explained in the initial decision, the appellant did not2
nonfrivolously allege facts sufficient to entitle him to a hearing on the issue of the
Board’s regulatory jurisdiction pursuant to 5 C.F.R. § 315.806(b)-(c). See Starkey
v. Department of Housing and Urban Development , 2024 MSPB 6, ¶ 16 & n.4
(stating that an appellant has the right to a hearing on the issue of the Board’s
jurisdiction under 5 C.F.R. § 315.806(b) only if she first makes a nonfrivolous
allegation of jurisdiction, i.e., allegations of fact that, if proven, would establish
that her termination was based on partisan political reasons or marital status).
Therefore, the Board does not have jurisdiction over the appellant’s age and
disability discrimination claims.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ballmer_Stephen_G_CH-315H-23-0238-I-1__Final_Order.pdf | 2024-07-22 | STEPHEN G. BALLMER v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-315H-23-0238-I-1, July 22, 2024 | CH-315H-23-0238-I-1 | NP |
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