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900 | https://www.mspb.gov/decisions/nonprecedential/Herrera_ToddSF-1221-20-0133-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TODD HERRERA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-20-0133-W-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul Richardson , Boise, Idaho, for the appellant.
Kacy Coble , Esquire, North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed 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;
1A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
supplement the administrative judge’s analysis as to why the appellant failed to
nonfrivolously allege that his protected activity was a contributing factor in any
personnel action taken against him, we AFFIRM the initial decision.
BACKGROUND
The agency hired the appellant as a Police Officer in March 2019. Herrera
v. Department of Veterans Affairs , MSPB Docket No. SF-1221-20-0133-W-1,
Initial Appeal File (IAF), Tab 8 at 17. One of the requirements of the appellant’s
position was to complete the agency’s Police Officer Standardized Training
(POST) Course at the agency’s Law Enforcement Training Center (LETC). Id.
at 19, 32-33. The appellant began this training in April 2019. IAF, Tab 9 at 4.
On June 13, 2019, the LETC Director informed the appellant and his
management that he would not be allowed to complete the POST Course because
of alleged misconduct. IAF, Tab 1 at 7. The following day, the appellant’s
management submitted a request to LETC that he be readmitted into the POST
Course. Id. at 9-10. Although the record does not reveal what response, if any,
LETC officials provided at that time, the appellant was not readmitted.2
On August 19, 2019, the appellant filed a complaint with the Office of
Special Counsel (OSC). IAF, Tab 15 at 1. As some correspondence regarding
the appellant’s complaint indicates, it concerned his dismissal from LETC, which
he believed was in violation of the law because he was not provided with advance
notice and an opportunity to reply. IAF, Tab 6 at 42-44. The appellant also
asserted that the LETC Director abused his power and falsified information when
he alleged that the appellant engaged in misconduct. Id. at 12-13. There is no
indication that the appellant asserted that he made a protected disclosure or
engaged in a protected activity prior to his dismissal from LETC.
According to the appellant, on September 24, 2019, after his management
made further requests to LETC that he be allowed to complete his training, LETC
staff responded that he would not be allowed to return. Herrera v. Department of
Veterans Affairs , MSPB Docket No. SF-1221-20-0025-W-1, Appeal File
(0025 AF), Tab 1 at 11-12.2 That same day, the appellant emailed OSC to inform
it of this update and asserted that the agency’s actions constituted whistleblower
retaliation. Id. On October 3, 2019, OSC terminated its investigation into the
appellant’s August 2019 OSC complaint. IAF, Tab 6 at 47-48.
On October 9, 2019, the appellant filed an IRA appeal with the Board,
asserting that the agency committed whistleblower retaliation and violated
various statutes and regulations when it dismissed him from LETC.
0025 AF, Tab 1 at 6. The appellant shortly thereafter moved to withdraw that
IRA appeal, 0025 AF, Tab 4 at 4, and the administrative judge thus dismissed it
as withdrawn, 0025 AF, Tab 7.
The appellant filed a second OSC complaint later that month. IAF, Tab 6
at 6, Tab 14 at 6. In that complaint, he alleged that after OSC initiated an
investigation into his first complaint and notified the LETC Director of that OSC
complaint, the Director misled OSC investigators in order to “justify / continue
2 The Board may take official notice of matters that can be verified, including
documents or actions in other Board appeals. Wofford v. Department of Justice ,
115 M.S.P.R. 468, ¶ 5 n.4 (2010); see 5 C.F.R. § 1201.64.3
denying [the appellant] access to training at . . . LETC.” IAF, Tab 6 at 29-32.
OSC terminated its investigation into the appellant’s October 2019 OSC
complaint on November 19, 2019. Id. at 34.
This IRA appeal followed. The appellant alleged that LETC dismissed him
from training and refused to readmit him in retaliation for his protected OSC
activity. IAF, Tab 1 at 4-5, 8-12. The administrative judge informed the appellant
how to establish the Board’s jurisdiction over his IRA appeal. IAF, Tab 2 at 2-8.
While this appeal was pending below, the appellant resigned from the agency and
transferred to the Department of Homeland Security. IAF, Tab 16 at 5.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). She assumed, without
making findings, that the appellant exhausted his OSC remedy and engaged in
protected activity by filing the August 2019 OSC complaint. ID at 7-8.
She found that the appellant could not establish that his OSC complaint, which he
filed after he was dismissed from training at LETC, contributed to the dismissal.3
ID at 9. Finally, the administrative judge determined that the appellant failed to
nonfrivolously allege that his OSC complaint was a contributing factor in any
decision not to readmit the appellant into the LETC. ID at 10-11.
The appellant has filed a petition for review, in which he primarily
disagrees with the LETC Director’s decision to dismiss him from the POST
Course. Petition for Review (PFR) File, Tab 1 at 6-8. He reasserts that the LETC
Director improperly impeded his continued access to training at LETC. Id. at 8.
The agency has not filed a response.
3 Although the administrative judge stated in the initial decision that the dismissal from
training was “not a personnel action,” the context of her finding makes it clear she was
finding that the appellant failed to nonfrivolously allege contributing factor. ID at 9.
Specifically, she stated that the appellant could not establish that his dismissal from
training was retaliatory “since he had not engaged in any protected activity that the
time.” Id.4
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant generally must
show by preponderant evidence that he exhausted his administrative remedies
before OSC and nonfrivolously allege that (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s).
Here, the appellant appears to re-raise two alleged personnel actions.
Specifically, he contests the merits of his initial dismissal from training, and
realleges that the LETC Director improperly prevented him from accessing LETC
thereafter. PFR File, Tab 1. We will address each in turn.
As to the appellant’s dismissal from training, he makes no specific
jurisdictional arguments. Instead, he asserts that he did not engage in misconduct
while attending the POST Course and the agency cannot prove a nexus between
his dismissal from training and the efficiency of the service. PFR File, Tab 1
at 5-8. We cannot reach these issues regarding the merits of the agency’s action
absent Board jurisdiction over his IRA appeal. Schmittling v. Department of the
Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (finding that in an IRA appeal,
the Board may not assume that the appellant has established jurisdiction over his
appeal, and then proceed to reject his whistleblower reprisal claim on the merits;
rather, the Board must first address the matter of jurisdiction before proceeding to
the merits of the appeal).
The appellant does not dispute that he failed to establish the contributing
factor element of the jurisdictional test. We discern no basis to disturb the5
administrative judge’s determination that the appellant failed to nonfrivolously
allege that his first OSC complaint was a contributing factor in his dismissal from
training 2 months earlier. ID at 9. A protected activity cannot contribute to a
personnel action which predates it. El v. Department of Commerce , 123 M.S.P.R.
76, ¶ 10 (2015), aff’d per curiam , 663 F. App’x 921 (Fed. Cir. 2016).
As to LETC’s decision to deny the requests of the appellant’s managers to
readmit him to LETC, the appellant appears to re-raise this claim, but makes no
specific arguments. PFR File, Tab 1 at 8; IAF, Tab 6 at 29-32. Nonetheless, we
take this opportunity to supplement the administrative judge’s finding on
contributing factor to incorporate the Board’s specific case law on this issue. See
Parrish v. Merit Systems Protection Board , 485 F.3d 1359, 1362 (Fed. Cir. 2007)
(expressing the Board’s obligation “to determine its own jurisdiction over a
particular appeal”).
The administrative judge found that the denial of readmission, if true,
would be a personnel action. ID at 10. However, she found that the appellant
failed to nonfrivolously allege that his OSC activity, beginning with his OSC
complaint in August 2019, was a contributing factor in the denial of readmission
into LETC. ID at 9-11. More specifically, the administrative judge found that
there was neither evidence nor a nonfrivolous allegation indicating that LETC
allowed individuals dismissed for misconduct to re-enroll in the POST Course,
and she concluded that the decision to bar him from re-enrolling was made at the
same time that he was dismissed from the training in June 2019. ID at 9-10. The
appellant does not challenge these findings, and we discern no reason to disturb
them.4
4 The administrative judge also found that the record reflected that the agency had no
retaliatory animus toward the appellant. ID at 11. To the extent that the administrative
judge thereby reached the issue of whether the agency proved by clear and convincing
evidence that it would have taken the same action regardless of the appellant’s
protected activity, we vacate that finding. See Clarke v. Department of Veterans
Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (recognizing that the Board may not
proceed to the clear and convincing evidence test unless it has first made a finding that
the appellant established a prima facie case of whistleblower reprisal), aff’d per curiam,6
A disclosure or activity that occurs after the personnel action at issue was
taken cannot be considered a contributing factor in that personnel action.
Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015).
Further, an agency has no obligation to reverse or otherwise reconsider a decision
to take a personnel action merely because it later learns that the affected
employee made a protected disclosure or engaged in protected activity.
See Buckler v. Federal Retirement Thrift Investment Board , 73 M.S.P.R. 476, 496
(1997); Charest v. Federal Emergency Management Agency , 54 M.S.P.R. 436,
440-41 (1992). To satisfy the contributing factor criterion at the jurisdictional
stage when the personnel action at issue is the agency’s implementation of a prior
decision, an appellant must nonfrivolously allege that the decision was merely
contemplated and in preparation at the time the agency learned of his disclosure.
Sherman, 122 M.S.P.R. 644, ¶¶ 8-9.
In Sherman, the Board considered whether an appellant met his
jurisdictional burden as to a lowered performance evaluation that the appellant
alleged the agency initiated before, but finalized after, the reviewing official
learned of the appellant’s alleged disclosure. Id., ¶¶ 3-4, 7. The Board found that
there was conflicting evidence as to the finality of the initial performance
evaluation, and it could not resolve this conflict without weighing that evidence.
Id., ¶ 10. Because the Board cannot weigh conflicting evidence at the
jurisdictional stage, it found that the appellant met his burden to nonfrivolously
allege contributing factor. Id., ¶ 11.
We find that the situation differs here from that in Sherman because the
appellant has not alleged that the agency’s June 2019 decision was provisional.
In his June 13, 2019 memorandum dismissing the appellant from the POST
623 F. App’x 1016 (Fed. Cir. 2015). Although the U.S. Court of Appeals for the
Seventh Circuit has disagreed with the Board’s decision in Clarke, it has done so on
different grounds. Delgado v. Merit Systems Protection Board , 880 F.3d 913, 923-25
(7th Cir. 2018). Thus, its disagreement does not implicate the finding for which we cite
Clarke here.7
Course, the LETC Director stated that the appellant “will not be able to return to
LETC for any further training due to misconduct.” IAF, Tab 1 at 7. LETC’s
directives provide that students whose training assignments are terminated for
misconduct are barred from returning to LETC for any future training.
IAF, Tab 8 at 24, 26. The directives also provide that “[t]he LETC Director, or
designee, is the approval authority for removing a student from training for
conduct.” Id. at 26. There is no indication that any law, rule, or regulation
provided students with a right to challenge a dismissal for alleged misconduct
from LETC. Nor did the LETC Director otherwise indicate that he might
reconsider his decision. IAF, Tab 1 at 7.
The appellant acknowledged that the Director made his decision to
“ban [the appellant] from training before he contacted the OSC and therefore his
decision [to continue to disallow the appellant to take part in LETC training]
could not have been retaliatory.” IAF, Tab 6 at 29. The appellant’s assertion
below that the LETC Director misled OSC investigators in order to justify his
original decision to dismiss and bar the appellant from training falls short of an
allegation that the determination was provisional. IAF, Tab 6 at 29-32.
Under these circumstances, when the undisputed record reflects that the
agency decided to bar the appellant from returning to LETC before he engaged in
protected activity, we find that the appellant has failed to nonfrivolously allege
that his protected activity was a contributing factor in the agency’s decision to
not allow him to return to LETC. Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular9
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 10
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the11
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Herrera_ToddSF-1221-20-0133-W-1__Final_Order.pdf | 2024-07-22 | TODD HERRERA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-20-0133-W-1, July 22, 2024 | SF-1221-20-0133-W-1 | NP |
901 | https://www.mspb.gov/decisions/nonprecedential/Bunner_BridgetPH-1221-20-0114-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIDGET BUNNER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-20-0114-W-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bridget Bunner , Nutter Fort, West Virginia, pro se.
Matthew Kelly , Esquire, Huntington, West Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her individual right of action (IRA) appeal. 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 DISMISS the appeal for lack of jurisdiction on
other grounds.
BACKGROUND
The appellant served as Nurse Manager of a Medical/Surgical unit at the
Department of Veterans Affairs medical center in Clarksburg, West Virginia. In
2018, based on an anonymous complaint, the agency’s Office of the Inspector
General (OIG) began conducting what turned out to be a lengthy investigation
into criminal activity, implicating the floor on which the appellant’s unit was
located. The appellant was not named in the investigation, although she and her
coworkers were required to provide information to the investigators conducting
the inquiry. Initial Appeal File (IAF), Tab 8 at 8, 13. On August 8, 2019, after
unsuccessfully applying for three positions in the Quality Management (QM)
department for which she was qualified, the appellant filed a complaint with the
Office of Special Counsel (OSC). IAF, Tab 6 at 5-13. She alleged that her
supervisor told her that she would not be hired in the QM department, even
though the supervisor there wanted to hire her, because of “optics,” that is,
because of the ongoing investigation at the facility. Id. at 9-10.
On appeal, the appellant reiterated her claim.2 IAF, Tab 1 at 3. She
declined a hearing. Id. at 2. In a subsequent pleading, the appellant explained
that, although she had done nothing wrong, she was denied a fair chance to
compete for the positions. IAF, Tab 4 at 3-4. Construing the appellant’s claim to
be that the agency took retaliatory action against her because of her
whistleblowing or other protected activity, the administrative judge issued an
order on jurisdiction and proof requirements for an IRA appeal. IAF, Tab 5. In
2 When she initially did not receive a close-out letter from OSC, the appellant filed her
appeal. However, because 120 days had not passed since she filed her OSC complaint,
the appeal was dismissed as premature on December 20, 2019. Bunner v. Department of
Veterans Affairs, MSPB Docket No. PH-1221-20-0044-W-1, Initial Decision (Dec. 20,
2019). On that same day, 120 days having now passed, the Northeastern Regional
Office docketed this appeal on the appellant’s behalf and adjudication proceeded.2
her response, the appellant did not address any of the IRA jurisdictional or proof
requirements set forth in the administrative judge’s order. IAF, Tab 6. Rather,
the appellant stated that the agency had willfully obstructed her right to compete
for the positions and, as a remedy, she asked to be allowed to “competitively
compete.” Id. at 10. The agency moved that the appeal be dismissed for lack of
jurisdiction, explaining that, due to the investigative process, the facility
determined that it was not in the best interest of patients and staff to allow the
appellant to become part of an organization with oversight responsibilities. IAF,
Tab 8 at 13.
The administrative judge issued an initial decision based on the written
record. IAF, Tab 14, Initial Decision (ID). She found that, under 5 U.S.C.
§ 2302(b)(9)(C), it is a prohibited personnel practice for an agency to take a
personnel action against an employee for making a disclosure to the agency’s
OIG, but that the matter disclosed must rise to the level of whistleblowing. ID
at 5. The administrative judge then found that the appellant failed to articulate
what she disclosed to the OIG or why she reasonably believed that it constituted
protected whistleblowing activity. ID at 6. The administrative judge found,
therefore, that the appellant failed to establish the Board’s jurisdiction over her
IRA appeal which she dismissed for lack of jurisdiction. ID at 2, 6.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5.
ANALYSIS
On review, the appellant states that she believes there is “some confusion
on the facts of the case.” PFR File, Tab 1 at 4. She explains that she is not
stating that the agency would not hire her in the QM department because she was
“a whistleblower to the OIG,” but rather that the agency is guilty of a prohibited
personnel practice, specifically 5 U.S.C. § 2302(b)(4), which precludes anyone3
with authority from deceiving or willfully obstructing any person with respect to
such person’s right to compete for employment. Id.
We agree that the administrative judge misconstrued the nature of the
appellant’s appeal. The basis of her OSC complaint was “willful obstruction” of
the right to compete for employment. IAF, Tab 6 at 10, 12. She made no
mention of retaliation for whistleblowing, either in the complaint or in her email
communications with the OSC employee assigned to her case. Id. at 14-31.
Further, in the additional information the appellant submitted with her appeal, she
again stated that she had not been given a chance to compete for employment.
IAF, Tab 4 at 3. And, as noted, in response to the administrative judge’s
jurisdictional order setting forth the requirements for an IRA appeal, the appellant
did not address any of those requirements, IAF, Tab 6, but instead repeated her
claim that the agency had willfully obstructed her right to compete, id. at 10. For
these reasons, and given the appellant’s clear statement on review, we find that
she did not intend to file an IRA appeal.
However, we need not remand this case to the administrative judge because
we may resolve it on the basis of the written record. The Board has no authority
to review an alleged violation of 5 U.S.C. § 2302(b)(4) absent an otherwise
appealable action. Finston v. Health Care Financing Administration ,
83 M.S.P.R. 100, ¶ 10 (1999); see also 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) (holding that
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction). Therefore, on this basis, the appellant’s appeal is
dismissed for lack of jurisdiction.3
3 We note the appellant’s claim on review that the agency’s detailing her to another
department on October 21, 2019, “could be perceived as retaliation for filing the PPP
[prohibited personnel practice] against the agency.” PFR File, Tab 1 at 4. If the
appellant wishes to pursue this claim as one of retaliation for protected activity, she
must first exhaust her remedy before OSC. See Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001 ) (holding that the Board has jurisdiction
over an IRA appeal if the appellant has exhausted his administrative remedies before
OSC and makes nonfrivolous allegations that: (1) he engaged in whistleblowing4
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:
activity by making a protected disclosure, and (2) the disclosure was a contributing
factor in the agency’s decision to take or fail to take a personnel action).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Bunner_BridgetPH-1221-20-0114-W-1__Final_Order.pdf | 2024-07-22 | BRIDGET BUNNER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-20-0114-W-1, July 22, 2024 | PH-1221-20-0114-W-1 | NP |
902 | https://www.mspb.gov/decisions/nonprecedential/Corpus_GonzaloDA-3443-23-0094-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GONZALO CORPUS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-3443-23-0094-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Rogers , San Antonio, Texas, for the appellant.
Jacqueline Brown , Cibolo, Texas, for the appellant.
April Garrett and Jamelda W. Burton-Domino , Houston, Texas, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed this appeal about the appellant’s request for continuation of pay
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
benefits under the Federal Employees’ Compensation Act based on collateral
estoppel and a lack of Board jurisdiction. On petition for review, the appellant
argues that the administrative judge failed to adequately determine whether he
presented nonfrivolous allegations. Petition for Review File, Tab 1 at 12-13. He
also asserts that some of the circumstances surrounding his efforts to receive
continuation of pay benefits occurred after his prior appeal about the matter. Id.
at 14-16. Next, the appellant seems to suggest that the administrative judge erred
by granting the agency’s request to stay discovery pending a ruling about Board
jurisdiction. Id. at 16-17. Lastly, the appellant indicates that he believes the
agency has not processed his continuation of pay benefits in reprisal for
whistleblowing. Id. at 17. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Corpus_GonzaloDA-3443-23-0094-I-1__Final_Order.pdf | 2024-07-22 | GONZALO CORPUS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-3443-23-0094-I-1, July 22, 2024 | DA-3443-23-0094-I-1 | NP |
903 | https://www.mspb.gov/decisions/nonprecedential/Chen_Dongning_DA-1221-22-0439-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONGNING CHEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-1221-22-0439-W-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Kleinman , Esquire, Houston, Texas, for the appellant.
Devora Mas , Esquire, and Jamelda Burton-Domino , Houston, Texas, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant reargues that he made nonfrivolous allegations
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of protected whistleblowing disclosures of gross mismanagement and abuse of
authority. He also argues that the administrative judge dismissed his appeal
without affording him the opportunity to complete discovery. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
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 | Chen_Dongning_DA-1221-22-0439-W-1__Final_Order.pdf | 2024-07-22 | DONGNING CHEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-1221-22-0439-W-1, July 22, 2024 | DA-1221-22-0439-W-1 | NP |
904 | https://www.mspb.gov/decisions/nonprecedential/Bialas_Gerald_J_DC-831M-20-0138-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD J. BIALAS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831M-20-0138-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gerald J. Bialas , Burke, Virginia, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that he received an overpayment of retirement annuity benefits under the Civil
Service Retirement System (CSRS). Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the Separation and Property
Settlement Agreement (PSA) is a court order acceptable for processing.
On petition for review, the appellant challenges the administrative judge’s
finding that the PSA is a court order acceptable for processing within the meaning
of 5 C.F.R. part 838.2 Petition for Review (PFR) File, Tab 1 at 1-2, 10 -11; Initial
Appeal File (IAF), Tab 20, Initial Decision (ID) at 5-6.3 Based on our review of
the record, we find that the administrative judge properly interpreted the PSA as
effectively placing the sole responsibility on OPM for paying the appellant’s
former spouse an apportionment of his annuity. ID at 6. As correctly discussed
in the initial decision, the PSA specifically requires OPM to make direct
payments of a portion of the appellant’s annuity to his former spouse. ID at 2, 6;
IAF, Tab 16 at 66-67. The PSA only requires the appellant to make interim
2 The PSA was ratified by, and incorporated into, a Final Order of Divorce issued by the
Circuit Court of Fairfax County, Virginia. Initial Appeal File, Tab 16 at 52-55, 57-87.
3 With his petition for review, the appellant has included an annotated copy of the initial
decision. PFR File, Tab 1 at 6-27.2
payments to his former spouse in the event of OPM’s delay in making direct
payments. ID at 2, 6; IAF, Tab 16 at 68-69. The PSA further provides that, in
the event the appellant’s former spouse receives payments from both OPM and
the appellant for the same month, she must reimburse him for such overpayment.
ID at 2, 6; IAF, Tab 16 at 69. Thus, the administrative judge considered the
appellant’s obligation to make interim payments, but she properly found that it
did not prohibit the PSA from being acceptable for processing. ID at 6; see
5 C.F.R. § 838.304(c). We discern no reason to disturb the administrative judge’s
finding that the PSA is a court order acceptable for processing based on the
appellant’s argument that the PSA assigned him payment responsibilities. PFR
File, Tab 1 at 1-2; ID at 5-6; see 5 C.F.R. § 838.304. In addition, we do not agree
with the appellant’s argument that OPM improperly has sought to modify the
terms of the PSA regarding his obligation to make interim payments. PFR File,
Tab 1 at 1.
The appellant further asserts that he did not respond to OPM’s briefing
regarding this issue because he did not receive a copy of OPM’s briefing. Id.
at 2, 11; ID at 5-6. We find that this conclusory assertion, without more, is
insufficient to rebut the presumption that he received OPM’s pleading by mail.
PFR File, Tab 1 at 2; ID at 5-6; IAF, Tab 17 at 11; see Butler v. Department of
Veterans Affairs , 119 M.S.P.R. 112, ¶ 5 (2013) (observing that the Board has
recognized a presumption that documents placed in the mail are received in
5 days). Moreover, the appellant has failed to explain how his substantive rights
were prejudiced by his alleged inability to respond to OPM’s briefing
(specifically, by describing how he was prevented from providing argument or
evidence that could have affected the outcome of the appeal). PFR File, Tab 1
at 2; 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
We affirm the administrative judge’s findings that OPM proved the existence and
amount of the total overpayment of $18,919.34, and that the appellant has failed
to prove his eligibility for waiver of the overpayment.
As properly set forth in the initial decision, OPM bears the burden of
proving by preponderant evidence4 the existence and amount of an annuity
overpayment. ID at 6; see Vojas v Office of Personnel Management ,
115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 831.1407(a). An appellant bears the
burden of proving by substantial evidence5 his eligibility for waiver of the
overpayment. ID at 11; see Vojas, 115 M.S.P.R. 502, ¶ 18; 5 C.F.R.
§ 831.1407(b).6
The erroneous refund of $11,242.93 in February 2018.
Regarding the overpayment of benefits to the appellant in a February 2018
refund, the administrative judge found that he failed to rebut OPM’s letters
explaining why that refund of survivor costs was erroneous. ID at 7; IAF, Tab 16
at 13-14, 17. We discern no reason to disturb this finding based on the
appellant’s mere disagreement on review that the refund was erroneous. PFR
File, Tab 1 at 2, 12; ID at 7. In particular, the PSA’s language, providing that the
4 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).
5 Substantial evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). This is a
lower standard of proof than preponderance of the evidence. Id.
6 The administrative judge cited cases, such as Vojas, 115 M.S.P.R. 502, ¶ 10, which
involved overpayments under the Federal Employees’ Retirement System (FERS). ID
at 6, 11, 14. The Board may rely on case law developed under both CSRS and FERS in
deciding overpayment appeals because the CSRS and FERS regulations regarding the
recovery of overpayments are generally parallel. See James v. Office of Personnel
Management, 72 M.S.P.R. 211, 216 n.3 (1996); compare 5 C.F.R.
§§ 831.1401-831.1407, with 5 C.F.R. §§ 845.301-845.307. For similar reasons, we
discern no prejudice to the appellant’s substantive rights based on the administrative
judge’s citation of FERS, rather than CSRS, statutory and regulatory provisions
regarding the recovery of overpayments. ID at 6, 11-13; see Panter, 22 M.S.P.R.
at 282; compare 5 U.S.C. § 8346(b), with 5 U.S.C. § 8470(b).4
appellant and his former spouse are to share the costs associated with a former
spouse survivor annuity, is consistent with OPM’s explanation that he is
responsible for a portion of survivor costs. ID at 7; IAF, Tab 16 at 13-14, 17, 67.
The appellant further disagrees with the administrative judge’s finding that
he was overpaid $11,242.93 because that was the gross amount of the refund from
which OPM withheld taxes. PFR File, Tab 1 at 2, 12; ID at 7. OPM is required
by law to withhold Federal income taxes from the benefit it pays and to remit that
amount to the Internal Revenue Service (IRS). Cebzanov v. Office of Personnel
Management, 96 M.S.P.R. 562, ¶ 11 (2004). Here, to the extent that the
adjustments in the appellant’s benefits and any resulting overpayment affect his
tax liability for past years, he must seek a remedy from the IRS. See id. Thus,
we find that OPM did not err by basing its overpayment calculations on the gross
amount of benefits paid to the appellant. ID at 7; IAF, Tab 16 at 5, 17, 30. For
the foregoing reasons, we affirm the administrative judge’s finding that OPM
proved the existence and amount of an $11,242.93 overpayment due to the
erroneous refund in February 2018. ID at 7.
The $7,676.41 overpayment of monthly CSRS annuity benefits from
June 2015 through August 2016.
The appellant challenges the administrative judge’s finding that OPM
proved the existence and amount of the overpayment of his monthly
CSRS annuity benefits that accrued during the 15-month period (from June 2015
through August 2016). PFR File, Tab 1 at 2, 14, 16; ID at 7-11. After reviewing
the record, we discern no reason to disturb the administrative judge’s finding.
Regarding the effective date of OPM’s obligation to make direct payments
of a portion of the appellant’s monthly CSRS annuity benefits to his former
spouse, the PSA simply states that OPM shall commence directly paying her “as
soon as administratively feasible after approval of this Agreement by OPM.”
IAF, Tab 16 at 67. Thus, we acknowledge that the PSA does not identify a
specific date on which OPM was required to begin making direct payments to the5
former spouse. PFR File, Tab 1 at 2, 14. Nevertheless, we find that the
administrative judge properly interpreted the terms of the PSA in accordance with
the regulations set forth at 5 C.F.R. part 838, which are referenced in the PSA
itself. ID at 9; IAF, Tab 16 at 66. Under 5 C.F.R. § 838.231(a), “A court order
acceptable for processing is effective against employee annuity accruing
beginning the first day of the second month after OPM receives the court order.”
ID at 7.
In the appellant’s prior Board appeal concerning the overpayment at issue,
he submitted documentation indicating that OPM was mailed copies of the Final
Order of Divorce and the PSA on April 21, 2015. Bialas v. Office of Personnel
Management, MSPB Docket No. DC-831M-19-0146-I-1, Initial Appeal File,
Tab 3 at 13-15. Thus, it is presumed that OPM received the Final Order of
Divorce and the PSA in April 2015, and the parties have not argued otherwise in
this appeal. IAF, Tab 1 at 2, Tab 17 at 5, 8; see Butler, 119 M.S.P.R. 112, ¶ 5 .
Therefore, we agree with the administrative judge’s finding that, pursuant to
5 C.F.R. § 838.231(a), the effective date of OPM’s obligation to make direct
payments to the former spouse was June 1, 2015.7 ID at 2, 7-8; cf. Fiacco v.
Office of Personnel Management , 105 M.S.P.R. 193, ¶¶ 13-14 (2007) (finding
that, under 5 C.F.R. § 838.225(a), OPM properly gave effect to an amended court
order beginning on September 1, 2005, when OPM received the amended court
order on July 29, 2005); 5 C.F.R. § 838.225(a) (providing that an amended court
order is effective against employee annuity accruing beginning the first day of the
second month after OPM receives the amended court order). Further, because
OPM did not begin making direct payments to the former spouse (and reducing
the appellant’s annuity to provide such benefits to her) until September 2016, we
7 Although the administrative judge erroneously found that OPM received the Final
Order of Divorce and the PSA in March 2015, we discern no prejudice to the appellant’s
substantive rights because we agree with her ultimate finding that OPM’s obligation to
make direct payments to the former spouse began on June 1, 2015. ID at 8; see Panter,
22 M.S.P.R. at 282.6
agree with the administrative judge’s finding that the appellant was overpaid
CSRS annuity benefits from June 2015 through August 2016. ID at 8.
In his petition for review, the appellant reasserts his argument that OPM
does not have an obligation to retroactively make direct payments to his former
spouse for the 15-month overpayment period because the PSA required him to
make interim payments to her during the same time period. PFR File, Tab 1 at 2,
14; ID at 8-9. For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant’s obligation to make direct
payments to his former spouse for the interim time period (from May 2015 until
the date OPM implemented direct payments to her) does not alter OPM’s
obligation to pay her a portion of his annuity benefits accruing from June 1, 2015.
ID at 8-9; IAF, Tab 16 at 66-69; see 5 C.F.R. § 838.222(d). We find that the
appellant has failed to provide a basis to disturb the administrative judge’s
well-reasoned finding. PFR File, Tab 1 at 2, 14.
Regarding the amount of the overpayment of CSRS annuity benefits from
June 2015 through August 2016, OPM clearly explained how it calculated the
apportionment of the appellant’s annuity in accordance with the PSA. ID at 8;
IAF, Tab 16 at 4-5, 66-67. OPM ultimately calculated that the former spouse was
due a total of $40,992.30 for the 15-month overpayment period and determined
that the appellant was overpaid this amount during the same time period. ID at 8;
IAF, Tab 16 at 5. OPM credited the appellant’s interim payments to his former
spouse during the 15-month overpayment period and reduced the $40,992.30
overpayment by $30,875.40, leaving $10,116.90 of the overpayment remaining.8
ID at 9-10; IAF, Tab 16 at 5. During the pendency of this appeal, OPM further
8 The appellant challenges the administrative judge’s finding that a reasonable
interpretation of the PSA would assume that the appellant would remit a reimbursement
of his interim payments to OPM to satisfy an overpayment. PFR File, Tab 1 at 2, 14; ID
at 9. However, the administrative judge’s interpretation is immaterial to the outcome of
this appeal because OPM simply credited the appellant’s interim payments, which he
made to his former spouse during the 15-month overpayment period, towards the
overpayment amount without requiring him to seek a reimbursement from her. ID
at 9-10.7
reduced the $10,116.90 overpayment by $2,440.49, resulting in an overpayment
amount of $7,676.41.9 ID at 11; IAF, Tab 17 at 7-8.
Although the appellant does not expressly dispute the amount of the
$7,676.41 overpayment, he disagrees with the administrative judge’s finding that
OPM proved by preponderant evidence that he was overpaid $18,919.34 in total
(including the erroneous $11,242.93 refund in February 2018). PFR File, Tab 1
at 2, 16; ID at 11. Specifically, the appellant asserts that OPM did not provide
him with evidence of the overpayment. PFR File, Tab 1 at 2. He further argues
that the $18,919.34 total amount erroneously includes approximately $4,500 in
taxes withheld by OPM. Id. As we found above, the appellant has failed to rebut
the presumption that he received OPM’s pleadings by mail. IAF, Tab 16 at 100,
Tab 17 at 11; see Butler, 119 M.S.P.R. 112, ¶ 5 . Moreover, the PSA defines the
appellant’s “self-only monthly annuity” under CSRS (a portion of which his
former spouse is entitled) as “the monthly annuity before reduction for any
purpose.” IAF, Tab 16 at 66. The PSA further provides, “Each party shall each
be required to pay Federal and State income taxes on that portion of the
retirement benefits which each receives.” Id. at 68. Thus, the PSA contemplates
that the apportionment of the appellant’s annuity benefits is based on the gross
amount of benefits before any withholdings for taxes. Therefore, we discern no
error in OPM’s calculation of the $7,676.41 overpayment.
In summary, we affirm the administrative judge’s finding that OPM proved
by preponderant evidence the existence and amount of a total overpayment of
$18,919.34. ID at 11. Next, we will address the appellant’s eligibility for waiver
of the overpayment.
9 OPM correctly has noted that the administrative judge made a typographical error in
stating that the remaining amount of the overpayment is $8,276.41. PFR File, Tab 4
at 4-5; ID at 11-12.8
The appellant’s eligibility for waiver of the $18,919.34 total
overpayment.
The administrative judge found that, even if the appellant were without
fault regarding the entire $18,919.34 overpayment, he would not be eligible for
waiver because he has failed to meet his burden of proving by substantial
evidence that recovery of the overpayment would be against equity and good
conscience. ID at 11-15; see 5 U.S.C. § 8346(b); Vojas, 115 M.S.P.R. 502, ¶ 18;
5 C.F.R. §§ 831.1401, 831.1407(b) . Specifically, the administrative judge found
that the appellant failed to prove by substantial evidence that recovery of the
overpayment would be against equity and good conscience because it would cause
him financial hardship or because it would be unconscionable under the
circumstances.10 ID at 12-15; see Vojas, 115 M.S.P.R. 502, ¶ 22; 5 C.F.R.
§§ 831.1403(a), 831.1407(b). The appellant challenges these findings on
review.11 PFR File, Tab 1 at 3, 18-19.
For the reasons provided in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to provide substantial
evidence to prove his allegation of financial hardship. ID at 13-14; see 5 C.F.R.
§ 831.1404 (providing that financial hardship may exist when the annuitant needs
substantially all of his current income and liquid assets to meet current ordinary
and necessary living expenses and liabilities). For the first time on review, the
appellant has submitted evidence of a disbursement of an unidentified amount
10 The administrative judge noted that the appellant did not allege that recovery would
be against equity and good conscience because the overpayment caused detrimental
reliance. ID at 12-13; 5 C.F.R. § 831.1403(a)(2). The appellant has not argued
otherwise on review. PFR File, Tab 1 at 1-3, 18.
11 In addition, the appellant challenges the administrative judge’s finding that he
partially was at fault for the overpayment of his annuity benefits from June 2015
through August 2016. PFR File, Tab 1 at 2-3, 17; ID at 12. However, as discussed
below, we affirm the administrative judge’s alternative finding that, even if the
appellant were without fault, he would not be eligible for waiver because he has failed
to prove that recovery of the overpayment would be against equity and good conscience.
ID at 11-15; see 5 U.S.C. § 8346(b); 5 C.F.R. § 831.1401. Thus, the appellant’s
arguments on review regarding fault are immaterial to the outcome of the appeal. PFR
File, Tab 1 at 2-3, 17.9
from his Thrift Savings Plan (TSP) to support his claim that he has been making
withdrawals from his TSP to fund his everyday expenses. PFR File, Tab 1 at 3, 5,
18; ID at 13. He has failed to explain why, despite his due diligence, he was
unable to provide such evidence prior to when the record before the
administrative judge closed. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (finding that the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party’s due diligence).
In any event, we find such evidence is immaterial to the outcome of this appeal
because it does not provide any specific information about the appellant’s
financial situation (such as his current income, assets, expenses, and liabilities).
See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding that
the Board generally will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision); see also 5 C.F.R. § 831.1404.
Further, we discern no reason to disturb the administrative judge’s finding
regarding the alleged unconscionability of recovery based on the appellant’s
reassertion on review of the following circumstances: (1) there has been an
exceptionally lengthy delay of 4 years by OPM in adjusting his annuity; (2) OPM
failed to respond within a reasonable length of time to his inquiries regarding the
overpayment; (3) OPM has been negligent in handling his case, as demonstrated
by the number of apportionment adjustments and errors made by OPM; (4) OPM
took 4 years to provide a response to the overpayment issues raised in this case;
and (5) OPM did not begin to respond to his phone calls, emails, or letters
concerning the apportionment of his annuity until he requested assistance from a
member of Congress. PFR File, Tab 1 at 3; IAF, Tab 1 at 4-5, Tab 6 at 4-5, Tab 8
at 2; ID at 14-15.
We find that the administrative judge properly considered the totality of
these circumstances in determining whether recovery of the overpayment would10
be unconscionable. ID at 14-15; see Aguon v. Office of Personnel Management ,
42 M.S.P.R. 540, 550 (1989). Although the administrative judge did not
expressly discuss the appellant’s claim that OPM did not respond to his inquiries
until he sought assistance from a Congressman, we find that the administrative
judge correctly considered the relevance of the length of time it took for OPM to
respond to his disputes of OPM’s calculations.12 ID at 15; IAF, Tab 16 at 4-20;
see Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984) (finding that an administrative judge’s failure to mention all of the
evidence of record does not mean that she did not consider it in reaching her
decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Based on the above, we affirm the administrative judge’s finding that the
appellant has failed to prove by substantial evidence his eligibility for waiver of
the total overpayment of $18,919.34 by establishing that recovery of the
overpayment would be against equity and good conscience. ID at 11-15.
Accordingly, we affirm the initial decision.13
12 For the first time on review, the appellant has submitted a letter dated June 27, 2017,
supporting his claim that he sought assistance from a Congressman regarding OPM’s
calculation of his annuity. PFR File, Tab 1 at 3-4. The appellant has failed to explain
why, despite his due diligence, he was unable to provide this letter prior to when the
record before the administrative judge closed. See Avansino, 3 M.S.P.R. at 214.
Nevertheless, we find that the letter is immaterial to the outcome of this appeal because
the administrative judge correctly considered the relevance of the length of time it took
for OPM to respond to the appellant’s inquiries. ID at 15; see Russo, 3 M.S.P.R. at 349.
13 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from his or her estate or other responsible party. A party responsible
for any debt remaining upon the appellant’s death may include an heir (spouse, child, or
other) who is deriving a benefit from the appellant’s Federal benefits, an heir or other
person acting as the representative of the appellant’s estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713(b), or transferees or distributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103, ¶ 13 (2016).11
NOTICE OF APPEAL RIGHTS14
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
14 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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.15 The court of appeals must 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.
15 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | Bialas_Gerald_J_DC-831M-20-0138-I-1__Final_Order.pdf | 2024-07-22 | GERALD J. BIALAS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-20-0138-I-1, July 22, 2024 | DC-831M-20-0138-I-1 | NP |
905 | https://www.mspb.gov/decisions/nonprecedential/Wells_Cedil_T_CH-0841-18-0573-A-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CECIL WELLS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0841-18-0573-A-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecil Wells , Columbus, Ohio, pro se.
Appeals Officer , 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 addendum initial
decision, which denied his motion for attorney fees 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to clarify the length of the filing
delay, we AFFIRM the initial decision.
BACKGROUND
The appellant previously filed a Board appeal, challenging a
reconsideration decision of the Office of Personnel Management (OPM)
concerning the recalculation of his Federal Employees’ Retirement System
(FERS) annuity, which the Board dismissed for lack of jurisdiction after OPM
rescinded the reconsideration decision. Wells v. Office of Personnel
Management, Docket No. CH-0841-18-0573-I-1, Initial Decision (ID) (Feb. 22,
2019). The initial decision became the Board’s final decision on March 29, 2019.
Id. at 3.
On March 2, 2010, more than 1 year after the issuance of the initial
decision, the appellant filed a motion for attorney fees. Wells v. Office of
Personnel Management , Docket No. CH-0841-18-0573-A-1, Attorney Fee File
(AFF), Tab 1. He maintained that OPM had not responded to his latest
correspondence concerning the agency’s denial of his request for reimbursement
of legal fees and seemingly argued that he was entitled to attorney fees because
the matter concerning his annuity recalculation had been settled. Id. at 4-5. The2
appellant submitted a letter from OPM dated June 26, 2019, in which an agency
representative stated that the appellant was not the prevailing party in his prior
appeal, which was dismissed following OPM’s rescission of its reconsideration
decision, and that he was not statutorily entitled to an award of attorney fees. Id.
at 7. He also submitted a letter dated August 28, 2019, in which OPM noted that
the appellant had accepted its May 23, 2019 recalculation of his FERS annuity
and denied his request for reimbursement of his attorney fees incurred concerning
the recalculation of his annuity. Id. at 6. Finally, the appellant submitted a
September 2018 fee agreement with a law firm, which noted that the appellant
had paid an initial retainer of $3,600. Id. at 8.
The administrative judge issued an order to show cause, informing the
appellant that his motion for attorney fees appeared to be untimely filed and that
he had the burden of proof on the issue of timeliness. AFF, Tab 3 at 1.
The administrative judge ordered the appellant to file evidence and argument that
his motion was timely filed or that good cause existed for the delay. Id. at 1-2.
In response, the appellant submitted into the record a May 29, 2019 email
addressed to an OPM representative and a paralegal at the Board setting forth his
belief that he was entitled to reimbursement of legal fees and attaching a copy of
the fee agreement with his attorney. AFF, Tab 4 at 4-7.
The administrative judge issued an initial decision denying the appellant’s
motion for attorney’s fees as untimely filed. AFF, Tab 6, Addendum Initial
Decision (AID) at 1, 5. He found that the appellant filed his motion for attorney
fees 314 days after the 60-day period set forth in the Board’s regulations had
expired. AID at 4. The administrative judge found that the appellant’s response
to the timeliness order contained no argument about why the Board should excuse
his filing delay. Id. Moreover, he found that the appellant’s May 29, 2019 email
in which he copied a Board paralegal could not qualify as a motion for attorney
fees and, in any event, would have been untimely by more than 30 days. Id.3
Therefore, the administrative judge found that the appellant had not shown that
his motion was timely filed or established good cause for his delay. AID at 4-5.
The appellant has filed a petition for review arguing that the Board should
award him legal fees as a matter of equity and raising a new argument regarding
the initial decision in his prior appeal. Petition for Review (PFR) File, Tab 1.2
DISCUSSION OF ARGUMENTS ON REVIEW
Under 5 C.F.R. § 1201.203(d), an attorney fees petition must be filed
within 60 days after the Board issues a final decision on the merits. See Mynard
v. Office Personnel Management , 108 M.S.P.R. 58, ¶ 7 (2008). The Board may
waive the deadline if the appellant establishes good cause for the filing delay.
See 5 C.F.R. § 1201.12. To establish good cause, a party must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. See Mynard, 108 M.S.P.R. 58, ¶ 7; 5 C.F.R. § 1201.12.
On petition for review, the appellant does not challenge the administrative
judge’s findings that he did not show that his motion for attorney fees was timely
filed or establish good cause for his filing delay. PFR File, Tab 1 at 4-7;
AID at 4-5. Instead, he argues for the first time on review that, although his
motion for attorney fees may have technically been untimely, his documented
legal fees were directly related to his prior appeal and, therefore, the Board
should award him attorney fees as a matter of judicial equity. PFR File, Tab 1
at 4. Moreover, he maintains for the first time on review that the initial decision
in his prior appeal granted him legal fees and encouraged the parties to negotiate
costs, but that OPM did not advise him of any obligations or responsibilities
regarding attorney fees at that time. Id.; AFF, Tab 1 at 4-8, Tab 4 at 4-7.
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.
2 The agency has not filed a designation of representative or any other pleading in the
present appeal.4
Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant has
made no such showing regarding his arguments on review and offers no
explanation why he did not make these arguments during the pendency of his
appeal or address his filing delay in response to the timeliness order. PFR File,
Tab 1 at 4-7. In any event, contrary to the appellant’s assertion on review, the
initial decision dismissing the appellant’s prior Board appeal for lack of
jurisdiction did not grant him legal fees or address any negotiations of costs
between the parties. Id. at 7; ID at 1-10. Moreover, the appellant’s argument that
granting him attorney fees would be in the interest of judicial equity does not
demonstrate that he exercised due diligence or ordinary prudence under the
circumstances of his appeal. See Mynard, 108 M.S.P.R. 58, ¶ 7; 5 C.F.R.
§ 1201.12.
Here, the administrative judge found that the initial decision in the
appellant’s Board appeal was issued on February 22, 2019, and that the motion
for attorney fees was therefore due no later than April 23, 2019. AID at 4.
Because the appellant did not file his motion until March 2, 2010,
the administrative judge found his appeal untimely filed by 314 days. Id.
However, the administrative judge erroneously calculated the filing date from the
date on which the initial decision was issued and not the date on which it became
the Board’s final decision, March 29, 2019. Id.; ID at 3; see 5 C.F.R.
§ 1201.203(d). Therefore, the filing deadline for the present appeal was
May 28, 2019, and the appeal was untimely filed by 279 days. Regardless, we
discern no basis to disturb the administrative judge’s determination that the
appellant’s motion for attorney fees was untimely filed beyond the 60-day
regulatory deadline and that the appellant failed to establish good cause for his
delay.
Accordingly, we deny the petition for review and affirm as modified the
addendum initial decision.5
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 | Wells_Cedil_T_CH-0841-18-0573-A-1__Final_Order.pdf | 2024-07-22 | CECIL WELLS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0841-18-0573-A-1, July 22, 2024 | CH-0841-18-0573-A-1 | NP |
906 | https://www.mspb.gov/decisions/nonprecedential/Burchett_William_A_PH-0752-19-0157-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM ANTHONY BURCHETT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-0752-19-0157-I-1
DATE: July 22, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William Anthony Burchett , Newton, West Virginia, pro se.
Lori L. Markle , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s indefinite suspension action. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On February 26, 2019, the appellant filed a Board appeal challenging the
agency’s proposal to indefinitely suspend him from his position as an Automotive
Technician. Initial Appeal File (IAF), Tab 1 at 3, Tab 4 at 25-28.
Shortly thereafter, effective March 2, 2019, the agency indefinitely suspended the
appellant because it found reasonable cause to believe that he had committed a
crime for which a term of imprisonment could be imposed. IAF, Tab 4 at 15-19.
The appellant requested a hearing on the matter. IAF, Tab 1 at 2. Following the
appellant’s failure to file a prehearing submission and participate in two
prehearing conferences, IAF, Tab 7 at 1, Tab 13 at 1, the administrative judge
issued a September 30, 2019 initial decision on the record affirming the agency’s
action, IAF, Tab 14, Initial Decision (ID) at 1, 7-8. The administrative
judge notified the appellant that the initial decision would become final on
November 4, 2019, unless a petition for review was filed by that date. ID at 8.
On February 18, 2020, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1 at 32. In his petition, the appellant avers that he did
not receive “notifications from MSPB.” Id. at 4, 18. He also makes arguments
ostensibly regarding the merits of his appeal, id. at 5-6, 8-11, 13, 15, and provides
additional documentary evidence, id. at 19-31.
The Office of the Clerk of the Board notified the appellant that his petition
for review was untimely and explained that he must file a motion asking the
Board to accept the petition for review as timely and/or to waive the time limit
for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond.
The agency has responded to the appellant’s petition for review, arguing that it is
untimely filed and that he has not shown good cause for his untimeliness.
PFR File, Tab 3 at 4-9.2
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that he received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date he
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on September 30, 2019, and sent to the appellant electronically the
same day. IAF, Tab 15 at 1. The appellant is a registered e-filer, IAF, Tab 1 at 2,
and Board documents served electronically on registered e-filers are deemed to
have been received on the date of electronic submission, 5 C.F.R. § 1201.14(m)
(2) (2019). Thus, the appellant’s petition for review is untimely by more than
3 months. PFR File, Tab 1; see 5 C.F.R. § 1201.114(e).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
To establish good cause for an untimely filing, the appellant must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to his inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950
(Fed. Cir. 2007).
We find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. Although the appellant is pro se, his
3-month delay in filing is not minimal and he failed to respond to the notice
affording him the opportunity to file a motion to accept the filing as timely and/or
to waive the time limit for good cause. See Cabarloc v. Department of Veterans3
Affairs, 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se
appellant’s 10-day delay in filing a petition for review when he failed to respond
to the Clerk’s notice regarding timeliness); see also Floyd v. Office of Personnel
Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month delay not minimal).
In his petition for review, the appellant asserts that he received a call from
“a lady representing MSPB” who informed him that his case has been continued
for 30 days,2 and, thereafter, he did not receive any additional filings from the
Board or “see any notifications from MSPB.” PFR File, Tab 1 at 4, 18.
Insofar as the record reflects that all Board filings, including the initial decision,
were electronically served on the appellant, this assertion does not constitute
good cause. See Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 7
(2009) (finding that the appellant failed to show that he exercised due diligence in
monitoring his case as a registered e -filer); 5 C.F.R. § 1201.14(j)(3) (2019)
(stating that e-filers are responsible for monitoring case activity at the Repository
at e-Appeal Online to ensure that they have received all case-related documents).
The appellant also alleges the following: (1) the agency misrepresented his
employment status to the State of West Virginia; (2) the agency is falsifying
vehicle maintenance records; (3) the agency violated his due process rights;
(4) his suspension did not promote the efficiency of the service; and (5) the initial
decision “was one sided.” PFR File, Tab 1 at 5-6, 8-11, 13, 15. However, these
ostensibly merit -based arguments do not show good cause for his untimeliness.
See Guevara v. Department of the Navy , 112 M.S.P.R. 39, ¶ 7 (2009) (finding that
the appellant failed to establish good cause for his untimely filed petition for
review when he merely argued the merits of his Board appeal).
The appellant provides numerous documents with his petition for review,
including information related to vehicle safety issues and his claim for
unemployment benefits. PFR File, Tab 1 at 19-31. However, he does not allege,
2 On May 29, 2019, the administrative judge suspended the matter for 30 days because
the underlying criminal matter was ongoing. IAF, Tab 9 at 1. The Order Suspending
Case Processing clearly stated that case processing would resume on June 28, 2019. Id.4
and nothing in his petition for review suggests, that the documents constitute new
evidence that was unavailable to him prior to the close of the record.3
See Agbenyeke v. Department of Justice , 111 M.S.P.R. 140, ¶ 12 (2009)
(explaining that the discovery of new evidence may establish good cause for the
untimely filing of a petition for review if, among other things, the evidence was
not readily available before the close of the record). Indeed, all of the appellant’s
arguments appear to be based on information previously available to him such
that he could have timely filed a petition for review on these bases. See Wilson v.
General Services Administration , 15 M.S.P.R. 45, 47 (1983) (finding that the
appellant had not shown good cause for his untimeliness because, among other
things, he failed to show that the “new” information on which he relied was
unavailable, despite due diligence, before the record closed).
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 merits of the 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
3 Indeed, although the appellant provides a letter that postdates the initial decision,
PFR File, Tab 1 at 19-20, the substance of the letter seemingly concerns events that
occurred prior to the issuance of the initial decision, see 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.”).
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
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 7
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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. 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 | Burchett_William_A_PH-0752-19-0157-I-1_Final_Order.pdf | 2024-07-22 | WILLIAM ANTHONY BURCHETT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-0752-19-0157-I-1, July 22, 2024 | PH-0752-19-0157-I-1 | NP |
907 | https://www.mspb.gov/decisions/nonprecedential/Evans_Rose_T_SF-0752-22-0202-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSE EVANS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-22-0202-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Morgan J. Velasquez , Esquire, Dallas, Texas, for the appellant.
Michael R. Tita , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal. On petition for review, she argues that the agency did not
prove all of the specifications supporting its unacceptable conduct charge, the
nexus between the charge and the efficiency of the service, or the reasonableness
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the removal penalty. She also argues that she proved her affirmative defenses
of race and sex discrimination. On review, she submits what she argues are new
documents. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant’s April 23, 2020 absence was not protected under the
Family and Medical Leave Act of 1993 (FMLA), we AFFIRM the initial decision.
¶2The appellant argues on review that the administrative judge failed to
adjudicate the issues of lack of candor and absence without leave (AWOL) as to
three specifications. Petition for Review (PFR) File, Tab 4 at 14-16, 19-20. We
have considered the appellant’s argument, but we disagree. The administrative
judge considered two of these specifications together, characterized them as
concerning lack of candor, and found that the appellant lacked candor as to the
statements at issue. Initial Appeal File (IAF), Tab 60, Initial Decision (ID)
at 9-11. Even if the administrative judge had not done so, we would find that the
agency met its burden to prove the appellant knowingly gave incorrect or
incomplete information as required to prove lack of candor. See Fargnoli v.
Department of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016) (holding that lack of
candor requires proof that the employee knowingly gave incorrect or incomplete2
information); 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 to reverse an initial decision).
¶3As to a third specification at issue, the administrative judge stated that the
agency “charged the appellant with being [AWOL]” on April 23, 2020, and that it
proved the allegation. ID at 11. Therefore, to the extent the appellant argues that
the administrative judge failed to properly characterize this specification as a
charge of AWOL, we are not persuaded. PFR File, Tab 4 at 19-20. In any event,
we agree with the administrative judge that the appellant did not report to work as
instructed on April 23, 2020, or request sick leave for her absence for that day
until April 24, 2020. ID at 11 . Therefore, even assuming the administrative
judge should have, but failed to, interpret this specification as an AWOL charge,
any error would not warrant granting review. See Wilson v. Small Business
Administration, 2024 MSPB 3, ¶ 7 (setting forth the elements of an AWOL
charge).
¶4The appellant also argues that her April 23, 2020 absence was protected
under the Family and Medical Leave Act of 1993 (FMLA). When the FMLA is
implicated relative to a leave-related charge, in order to prove the charge, the
agency must prove that it complied with the FMLA. Ellshoff v. Department of the
Interior, 76 M.S.P.R. 54, 73 (1997). Because the administrative judge did not
address this issue, which the appellant raised below, we do so here. IAF, Tab 32
at 15.
¶5We find that the appellant did not make a request for FMLA-protected leave
in connection with her April 23, 2020 absence. She generally asserted below,
without supporting documentation, that she sought and was granted FMLA-
protected leave on unspecified dates. Id. She does not point to any evidence on
review that supports her claim that she sought FMLA-protected leave specifically
for April 23, 2020. PFR File, Tab 4 at 19-20. Instead, she reasons that because3
she called in on April 24, 2020, to request sick leave for that day and the previous
day, her absence on April 23, 2020 should have been excused. Id. at 19-21.
¶6Pursuant to the agency’s Employee and Labor Relations Manual, § 665.42,
employees who fail to report for duty as scheduled are considered AWOL except
in cases where actual emergencies prevent them from obtaining permission in
advance.2 IAF, Tab 22 at 50. The appellant does not claim that she requested
leave in advance of her April 23, 2020 absence or that she was unable to do so.
PFR File, Tab 4 at 20. We find nothing in the record to suggest that the agency
violated the FMLA by disallowing the appellant’s leave request for that date and
carrying her in AWOL status.
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.
2 We find that this provision is consistent with the FMLA’s implementing regulations.
See 29 C.F.R. §§ 825.302(a), (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.4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Evans_Rose_T_SF-0752-22-0202-I-1__Final_Order.pdf | 2024-07-19 | ROSE EVANS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-22-0202-I-1, July 19, 2024 | SF-0752-22-0202-I-1 | NP |
908 | https://www.mspb.gov/decisions/nonprecedential/Stinson_Robert_J_DE-0841-23-0047-I-1__FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. STINSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0841-23-0047-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Stinson , Overland Park, Kansas, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying the appellant’s application for deferred annuity benefits. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, the appellant argues that the administrative judge
misinterpreted the applicable statute and regulations in finding that he was
ineligible to make a deposit to receive retirement credit for service in the 1980s
for which retirement deductions were not taken in order to meet the minimum
length of service requirement for entitlement to an annuity. Petition for Review
(PFR) File, Tab 1 at 5-6. He also asserts that the administrative judge failed to
consider all the relevant evidence.2 Id. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
2 On appeal, the appellant submitted a July 19, 1991 letter from the National Finance
Center, indicating that he was eligible for deferred retirement benefits. Initial Appeal
File (IAF), Tab 8 at 12. The appellant is correct that the letter was not addressed in the
initial decision, but that omission does not mean that the administrative judge did not
consider it, and, in any event, it does not warrant a different outcome in this matter.
See Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132
(1984), (finding that the administrative judge’s failure to mention all the evidence of
record does not mean that she did not consider it in reaching her decision), aff’d,
776 F.2d 1062 (Fed. Cir. 1985). As the administrative judge correctly found, the
appellant failed to meet the requirements for entitlement to make a deposit for his
service and did not otherwise show his entitlement to an annuity. While we are
sympathetic to the appellant’s situation, payments of monies from the retirement funds
are limited to those authorized by statute, Office of Personnel Management v.
Richmond, 496 U.S. 414, 416 (1990), and the requirements for eligibility for a
retirement benefit are substantive legal requirements that allow for no administrative
discretion by OPM or by the Board, Andrada v. Office of Personnel Management ,
74 M.S.P.R. 226, 233, aff’d, 132 F.3d 55 (Fed. Cir. 1997).2
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 | Stinson_Robert_J_DE-0841-23-0047-I-1__FInal_Order.pdf | 2024-07-19 | ROBERT J. STINSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0841-23-0047-I-1, July 19, 2024 | DE-0841-23-0047-I-1 | NP |
909 | https://www.mspb.gov/decisions/nonprecedential/Jones_Lillian_K_SF-0831-23-0037-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LILLIAN K. JONES,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-23-0037-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lillian K. Jones , Oakland, California, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*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 denying
her survivor annuity benefits based on the Federal service of her deceased
husband. On petition for review, the appellant argues that her deceased husband
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
intended to provide her with survivor benefits. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6 | Jones_Lillian_K_SF-0831-23-0037-I-1__Final_Order.pdf | 2024-07-19 | LILLIAN K. JONES v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-23-0037-I-1, July 19, 2024 | SF-0831-23-0037-I-1 | NP |
910 | https://www.mspb.gov/decisions/nonprecedential/Ivory_Kaminski_K_AT-315H-20-0414-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAMINSKI K. IVORY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-20-0414-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kaminski K. Ivory , Decatur, Georgia, pro se.
Sophia E. Haynes , Esquire, Decatur, Georgia, for the agency.
Karen S. Rodgers , Esquire, Montgomery, Alabama, 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 termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to vacate the administrative judge’s finding that the
appellant was appointed to the competitive service and clarify that the appellant
has not made a nonfrivolous allegation that she met the definition of an
“employee” with chapter 75 appeal rights in either the competitive or excepted
service, we AFFIRM the initial decision.
BACKGROUND
Effective April 14, 2019, the agency appointed the appellant to the position
of Purchasing Agent in the Veterans Health Administration. Initial Appeal File
(IAF), Tab 7 at 65-66. The record is unclear regarding the nature of the
appellant’s appointment due to inconsistencies in the agency’s appointment
Standard Form 50 (SF-50) and other documents in the evidence file. The
appointment SF-50 stated that the nature of the action was an excepted service
appointment (“EXC APPT”). Id. at 66. Moreover, both the appointment and
correction SF-50 stated that the appellant was appointed under a Schedule A
authority pursuant to 5 C.F.R. § 213.3102(a), which concerns the excepted
service positions of Chaplain and Chaplain’s Assistant. Id. at 65-66. However,
Box 34 (“Position Occupied”) in both documents identified the nature of the2
appointment as competitive service and Box 24 identified “permanent” tenure.
Id. Finally, neither SF -50 identified a probationary or trial period to which the
appellant’s appointment was subject. Id.
Less than 1 year later, effective April 9, 2020, the agency terminated the
appellant. Id. at 17-19. In a memorandum with the subject “Termination During
Probationary Period,” the agency stated that the appellant had been serving a
career-conditional appointment subject to a 1-year “probationary/trial period.”
Id. at 17. The agency informed the appellant that she was being terminated due to
failure to follow instructions and absence without leave (AWOL). Id. Prior to
her termination, the agency issued to the appellant three counseling memoranda in
March 2020 and one oral counseling in February 2020 concerning performance
issues, incidents of AWOL, and leave restrictions. Id. at 38-43. The record does
not contain an SF-50 documenting the appellant’s termination.
The appellant filed an appeal and requested a hearing. IAF, Tab 1 at 2.
She indicated that she was challenging her “[t]ermination during probationary or
initial service period,” but stated that her length of service was 1 year. Id. at 1, 3.
The appellant asserted that she had filed an equal employment opportunity (EEO)
complaint1 against her supervisor, who harassed her and shared her reasonable
accommodation request with another employee. Id. at 5. She maintained that she
“was not informed of any performance issues prior to [her] termination” and that
her “termination was retaliation.” Id. In a jurisdiction order, the administrative
judge informed the appellant that the Board may not have jurisdiction over her
appeal. IAF, Tab 3 at 2. He apprised the appellant of the requirements for
meeting the definition of an “employee” in the competitive service for purposes
of 5 U.S.C. chapter 75 appeal rights and the regulatory right to appeal for
probationers in the competitive service. Id. at 2-5. The appellant did not file a
response to the jurisdiction order.
1 The agency file contained an Equal Employment Opportunity Commission case
number regarding a “formal complaint of discrimination that is the subject of this
appeal.” IAF, Tab 7 at 16.3
The agency filed a motion to dismiss the appeal for lack of jurisdiction,
arguing that the appellant was serving a probationary period, had less than 1 year
of current continuous service at the time of her termination, and that she did not
meet the definition of an “employee” for purposes of chapter 75 appeal rights.
IAF, Tab 5 at 4-5. The agency also argued that the appellant had not made a
nonfrivolous allegation of any of the following claims that could bring her appeal
under Board jurisdiction: that her termination2 was based on partisan political
reasons, marital status, matters occurring before her appointment; the agency’s
decision was reprisal for making a protected disclosure or engaging in protected
activity; the agency discriminated against her based on uniform service; or the
agency violated her veterans’ preference rights. Id. at 5.
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,
Tab 8, Initial Decision (ID) at 1, 5. The administrative judge set forth the
statutory definitions for an “employee” under 5 U.S.C. § 7511(a)(1)(A)-(C) for an
individual in the competitive service, a preference eligible in the excepted
service, and a nonpreference-eligible individual in the excepted service. ID at 3.
He found that the appellant was not an “employee” at the time of her termination
because she was serving a probationary period under a competitive service
appointment and had completed less than 1 year of current continuous service.
Id. The administrative judge found that the appellant had not alleged that the
agency had terminated her based on partisan political reasons or marital status, or
that the agency had failed to follow the regulatory procedures mandating
terminations for pre-appointment reasons. ID at 4. Finally, he found that the
Board lacked jurisdiction over the appellant’s discrimination claims absent an
otherwise appealable action. Id.
2 Although the agency’s brief used the term “non-selection” in regard to the appellant’s
failure to make any of these allegations that could be a basis of Board jurisdiction, the
context clearly concerns the appellant’s termination. IAF, Tab 5 at 5.4
The appellant has filed a petition for review asserting that the Board did
not request that she provide “material fact or evidence of [her] allegation of
discrimination or reprisal.” Petition for Review (PFR) File, Tab 1 at 4. She also
submits a narrative statement regarding her discrimination complaint on the basis
of disability. Id. at 5-6. The agency has filed a response arguing that appellant
failed to make a nonfrivolous allegation of jurisdiction and has not submitted any
new or material evidence on review that was not available when the record
closed. PFR File, Tab 3 at 5-7.
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, this means that she either must not be serving a probationary or trial
period under an initial appointment, or have completed 1 year of current
continuous service under other than a temporary appointment limited to 1 year or
less. 5 U.S.C. § 7511(a)(1)(A)(i), (ii). The definition of an “employee” also
includes a preference-eligible individual in the excepted service who has
completed 1 year of current continuous service in the same or similar positions in
an Executive agency. 5 U.S.C. § 7511(a)(1)(B)(i). Finally, a nonpreference-
eligible individual in the excepted service satisfies the definition of an
“employee” if she is “not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service” or if she has
“completed 2 years of current continuous service in the same or similar positions5
in an Executive agency under other than a temporary appointment limited to
2 years or less.” 5 U.S.C. § 7511(a)(1)(C)(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 she 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). In
addition, 5 C.F.R. § 315.806(d) provides for jurisdiction over complaints of
jurisdiction based on race, color, religion, sex (including pregnancy and gender
identity), national origin, age, and disability, in connection with a probationary
termination, but only if “such discrimination is raised in addition to one of the
issues stated in paragraph (b) or (c) of this section.” Jafri v. Department of the
Treasury, 68 M.S.P.R. 216, 220 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996)
(Table).
An appellant is entitled to a jurisdictional hearing if she presents
nonfrivolous allegations3 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
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).6
conflicting assertions of the parties and the agency’s evidence may not be
dispositive. Id.
As discussed above, the record is unclear whether the appellant held an
appointment in the competitive or excepted service and the appointment SF-50
contains conflicting information regarding this issue. IAF, Tab 7 at 65-66. While
an executed SF-50 is the customary documentation for a personnel action, it does
not constitute the personnel action itself and does not on its face control an
employee’s status and rights. Hunt-O’Neal v. Office of Personnel Management ,
116 M.S.P.R. 286, ¶ 10 (2011). To the extent that the administrative judge
improperly weighed the evidence when he found that the appellant was appointed
to a position in the competitive service subject to a 1 -year probationary period,
we vacate that finding. ID at 3; IAF, Tab 7 at 65-66; see Ferdon, 60 M.S.P.R.
at 329. Although the administrative judge failed to provide the appellant with
notice regarding the requirements for meeting the definition of an employee in the
excepted service in the jurisdiction order, IAF, Tab 3 at 3, this error was cured by
the initial decision, which set forth the requirements in detail, ID at 3. See
Mapstone v. Department of the Interior , 106 M.S.P.R. 691, ¶ 9 (2007) (stating
that an administrative judge’s failure to provide an appellant with proper Burgess
notice can be cured if the initial decision puts the appellant on notice of what he
must do to establish jurisdiction).
For the following reasons, we agree with the administrative judge that the
employee failed to make a nonfrivolous allegation that she was an “employee” for
purposes of 5 U.S.C. chapter 75 appeal rights, or that there was a regulatory basis
for her appeal under the provisions set forth in 5 C.F.R. part 315, subpart H. ID
at 3-4. The appellant does not challenge these findings on review, but instead
makes arguments solely regarding her allegations of discrimination and
retaliation for EEO activity. PFR File, Tab 1 at 4-6. She has not alleged, either
during the pendency of her appeal or on review, that she was not serving a7
probationary or trial period or that she had 1 year of current continuous service4
at the time of her termination. Id.; IAF, Tab 1 at 5. Moreover, the appellant
stated that she was serving a probationary, trial, or initial service period at the
time of the action she was appealing and identified her appeal as a probationary
termination. IAF, Tab 1 at 1, 3. Finally, the appellant has not alleged that she
had any prior Federal service prior to the appointment at issue in the present
appeal. PFR File, Tab 1 at 4-6; IAF, Tab 1 at 5.
Therefore, the appellant has not alleged that she met either definition of a
competitive service employee under 5 U.S.C. § 7511(a)(1)(A). ID at 3. The
appellant stated in her initial appeal that she was not entitled to veterans’
preference, and thus she has not alleged that she was a preference eligible in the
excepted service under 5 U.S.C. § 7511(a)(1)(B). IAF, Tab 1 at 1. Although the
record is not clear whether the appellant was serving a probationary or trial
period at the time of her termination, she has not alleged, nor does the record
suggest, that she held an “initial appointment” to the excepted service pending
conversion to the competitive service and therefore she could not meet the
statutory definition under 5 U.S.C. § 7511(a)(1)(C)(i). Finally, she has not made
a nonfrivolous allegation that she had completed 2 years of current continuous
service in the same or similar positions in an executive agency. See 5 U.S.C.
§ 7511(a)(1)(C)(ii). Because the appellant failed to nonfrivolously allege that she
was a competitive service or excepted service “employee” with Board appeal
rights under 5 U.S.C. chapter 75, she was not entitled to a jurisdictional hearing.
See Ferdon, 60 M.S.P.R. at 329.
To the extent that the appellant was a probationer in the competitive
service, she has not alleged that her termination was based on partisan political
4 The appellant indicated on her initial appeal form that she had 1 year of Government
service. IAF, Tab 1 at 1. However, she has not challenged the date of her initial
appointment, effective April 14, 2019, or termination less than 1 year later, effective
April 9, 2020. PFR File, Tab 1 at 4-6; IAF, Tab 1 at 4-5, Tab 7 at 17, 65.8
reasons or marital status, or that the agency action was based (in whole or part)
on pre-appointment reasons and that the agency failed to follow the procedures
set forth at 5 C.F.R. § 315.805. PFR File, Tab 1 at 4-6; IAF, Tab 1 at 5; see
5 C.F.R. § 315.806(b)-(c). Therefore, she has presented no basis for Board
jurisdiction over her discrimination claim connected to her termination. See
5 C.F.R. § 305.806(d) (explaining that the Board has jurisdiction over complaints
of discrimination based upon a protected class such as disability in connection
with a probationary termination only if “such discrimination is raised in addition
to one of the issues stated in paragraph (b) or (c) of [that] section”). Absent an
otherwise appealable action, the Board lacks jurisdiction over the appellant’s
claims of discrimination and retaliation for EEO activity. PFR File, Tab 1 at 4-6;
IAF, Tab 1 at 5; see Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012).
Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Ivory_Kaminski_K_AT-315H-20-0414-I-1__Final_Order.pdf | 2024-07-19 | KAMINSKI K. IVORY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-315H-20-0414-I-1, July 19, 2024 | AT-315H-20-0414-I-1 | NP |
911 | https://www.mspb.gov/decisions/nonprecedential/Green_EdwardSF-0752-20-0514-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD GREEN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0514-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary G. Singh , Esquire, Honolulu, Hawaii, for the appellant.
Yuwynn E. Ho , Esquire, and Evan Richard Gordon , Esquire, Quantico,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action for unacceptable conduct. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The administrative judge found that the appellant failed to prove his
affirmative defense of age discrimination. Initial Appeal File (IAF), Tab 29,
Initial Decision (ID) at 21-23. He further found that the agency established a
nexus between the charged misconduct and the efficiency of the service and that
the penalty of removal was reasonable. ID at 26-29. The parties do not challenge
these findings on review, and we decline to disturb them.
The appellant argues on review that the agency wrongfully charged him
with misconduct and that he did not engage in the alleged racist, sexual, and
threatening acts. Petition for Review (PFR) File, Tab 1 at 1, 3. The
administrative judge found that the agency proved each of the nine specifications
underlying its charge of unacceptable conduct, under which the agency alleged
that the appellant used racial slurs, made derogatory remarks to persons of color,
made sexual jokes to coworkers, and threatened a coworker. ID at 3-20. As set
forth below, we agree with the administrative judge’s findings regarding the
charged misconduct.
The administrative judge’s findings in sustaining each of the specifications
were based in large part on crediting the agency’s witnesses’ testimony over that2
of the appellant’s. Id. The Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016). The Board may only overturn such demeanor-based credibility
determinations when they are incomplete, inconsistent with the weight of the
evidence, and do not reflect the record as a whole. Faucher v. Department of the
Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).
Following a video-conference hearing, the administrative judge found the
appellant’s testimony denying and reframing the alleged misconduct to be
inconsistent, improbable, unpersuasive, and not credible. ID at 4-12, 14-15,
17-20. Instead, he credited the testimony of a Corporal, Lance Corporal, Staff
Sergeant, and Sergeant, finding their testimony unequivocal, persuasive, and
based on personal knowledge as percipient witnesses to the various
specifications. ID at 6-20. Moreover, the administrative judge noted that their
testimony was detailed, specific, consistent with earlier statements and statements
of other witnesses, and not inherently improbable. Id.
The appellant on review merely denies engaging in the alleged misconduct.
PFR File, Tab 1 at 1. He asserts that he is “not a racist or bigot.” Id. at 3. In
support of this assertion, he points to the fact that his wife and much of his family
is of Asian and Pacific Islander descent, and that most of his friends are
minorities. Id. However, the appellant has provided no evidence or argument
that the administrative judge’s credibility determinations were incomplete,
inconsistent with the weight of the evidence, or did not reflect the record as a
whole. Consequently, he has failed to identify sufficiently sound reasons for3
disturbing those demeanor-based credibility determinations. Haebe, 288 F.3d at
1301.
The appellant additionally repeats his argument that the agency’s witnesses
were coerced into signing statements in support of the charged misconduct. PFR
File, Tab 1 at 3. For example, he argues that the statements from different
witnesses appear written by someone with a legal background, were in the same
font and writing style, and appeared to include information the witnesses did not
understand. Id. The administrative judge considered these arguments and found
them unpersuasive. ID at 4-7, 9, 11, 23. The appellant offers no new evidence or
argument to support this allegation and rather merely disagrees with the
administrative judge’s analysis. The Board will not disturb an administrative
judge’s findings when he considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility. Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357, 359 (1987). Accordingly, we
discern no reason to disturb the administrative judge’s demeanor-based credibility
determinations and thus agree that the agency sufficiently proved the charged
misconduct.
The appellant also argues that the agency committed harmful procedural
error by not allowing his lawyer or a union representative to be present at
investigative interviews during which he was questioned about the charged
misconduct. PFR File, Tab 1 at 1-2. The administrative judge considered this
argument and found that the appellant was properly advised of his option to have
a union representative at the interviews, but the appellant declined. ID at 23-25.
The administrative judge additionally found that the appellant failed to articulate
how any alleged error was harmful. ID at 25-26. We agree with the
administrative judge’s analysis on this issue.
An appellant bears the burden of proof to show harmful error by the agency
in effecting an adverse action. Canary v. U.S. Postal Service , 119 M.S.P.R. 310,4
¶ 9 (2013). Harmful error cannot be presumed; an agency error is harmful only
when the record shows that the procedural error was likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Id., ¶ 12. Regardless of whether it was error for the
agency to deny the appellant’s request to have his lawyer present at the
interviews, the appellant has not shown how this error was harmful. See Doe v.
U.S. Postal Service , 95 M.S.P.R. 493, ¶ 13 (2004) (finding any error in denying
the presence of the appellant’s attorney at an investigative interview was harmless
when the appellant failed to show that the agency would not have taken the same
action had his attorney been able to speak on his behalf at the interview),
overruled on other grounds by Marcell v. Department of Veterans Affairs , 2022
MSPB 33, ¶ 7. The appellant has not alleged or explained how his attorney’s
presence at these interviews would have altered the outcome of the agency’s
action.
The appellant similarly argues that the administrative judge erred in
considering his status as a bargaining unit employee in upholding the agency’s
action. PFR File, Tab 1 at 2. The appellant asserts that he was in fact not a
bargaining unit employee, and thus was ineligible to have union representation at
the investigative interviews.2 Id. Regardless of whether the administrative judge
erroneously found that the appellant was a bargaining unit employee, the
appellant has failed to demonstrate that this error was prejudicial to his
substantive rights or in any way led to an outcome different in the absence of the
error.
2 The appellant attaches new evidence on review purporting to show that he was not a
bargaining unit employee. PFR File, Tab 1 at 5-8. Because we find that the appellant’s
status as a bargaining unit employee did not affect the outcome of this appeal, we find
that this new evidence is not material and thus we do not consider it. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (finding the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision). 5
The appellant additionally argues that the administrative judge erred in
denying all of the 12 witnesses he proffered to testify regarding his character or
to impeach the testimony of the agency’s witnesses. PFR File, Tab 1 at 2. The
administrative judge denied these witnesses after finding that their testimony
would not be relevant. IAF, Tab 18 at 2-4, Tab 20 at 1-2. An administrative
judge has wide discretion under the Board’s regulations to exclude witnesses
when it has not been shown that their testimony would be relevant, material, and
nonrepetitious. Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985);
see 5 C.F.R. § 1201.41(b)(8), (10). The Board will not reverse an administrative
judge’s rulings on these matters absent an abuse of discretion. Wagner v.
Environmental Protection Agency , 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d
1236 (Fed. Cir. 1993) (Table). The Board has held that, when there is no showing
that a witness’s character testimony would have added anything to the character
information already in the record, it is not error for the administrative judge to
deny the witness. Farris v. Department of the Air Force , 20 M.S.P.R. 547, 551
n.3 (1984). Indeed, the record contains numerous declarations attesting to the
appellant’s character, including written statements from several of his proffered
witnesses. IAF, Tab 6 at 39-69, Tab 15 at 28-32. Moreover, the appellant had a
full and fair opportunity to impeach the agency’s witnesses’ testimony through
cross-examination. See Hooper v. Department of the Interior , 120 M.S.P.R. 658,
¶ 21 (2014) (finding that an administrative judge did not abuse her discretion in
excluding impeachment evidence when the parties had a full and fair opportunity
to impeach the witness’s testimony through cross-examination). Accordingly, the
appellant has failed to demonstrate that the administrative judge abused his
discretion in denying the appellant’s witnesses.
The appellant additionally argues that he has been subject to a hostile work
environment dating back to 2004 by his direct supervisor and another individual.
PFR File, Tab 1 at 3. He also appears to argue that he was erroneously not
selected for a position despite being deemed qualified. Id. at 3-4. The appellant6
did not raise these arguments below; thus, we find they are not new or material,
and we decline to consider them. See Clay v. Department of the Army ,
123 M.S.P.R. 245, ¶ 6 (2016) (finding 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).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Green_EdwardSF-0752-20-0514-I-1__Final_Order.pdf | 2024-07-19 | EDWARD GREEN v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0514-I-1, July 19, 2024 | SF-0752-20-0514-I-1 | NP |
912 | https://www.mspb.gov/decisions/nonprecedential/Forestier_MarioDC-0752-19-0668-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIO FORESTIER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-19-0668-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Samantha Arrington Sliney , Esquire, and Derek Coyne , Esquire, 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
sustained the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. We MODIFY the initial
decision to find that the appellant made protected disclosures and to supplement
the administrative judge’s analysis of whether the agency proved by clear and
convincing evidence that it would have removed the appellant in the absence of
his disclosures. We also MODIFY the administrative judge’s analysis of the
agency’s penalty determination. Except as expressly MODIFIED herein, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as Division Chief, GS-0301-14,
in Fort Bragg, North Carolina.2 Initial Appeal File (IAF), Tab 5 at 17. In March
2019, the agency proposed the appellant’s removal based on two charges of
insubordination, as well as single charges of insolence, lack of candor, and failure
to follow time and attendance procedure. IAF, Tab 6 at 26-31. The first
insubordination charge as well as the insolence and lack of candor charges arose
out of the appellant's cancellation of official travel to attend training in February
2019 despite a specific order not to do so. Id. at 26. The second insubordination
charge involved an allegation that the appellant refused to provide a copy of a
contract to his supervisor. Id. at 27. The charge of failure to follow time and
2 Since the events at issue in this appeal, Fort Bragg has been renamed Fort Liberty.2
attendance procedure involved allegations that the appellant worked overtime
without obtaining the required advance written approval. Id. at 27-28. After the
appellant responded in writing to the proposed removal, IAF, Tab 5 at 40-46, the
agency removed the appellant effective July 18, 2019, id. at 17, 19-20. The
agency offered the appellant a last chance agreement in lieu of removal, IAF,
Tab 5 at 22-26, but the appellant did not accept it.
The appellant timely filed this appeal challenging his removal. IAF, Tab 1.
In his initial appeal, he challenged both the charges and the penalty; he also
alleged that his removal was retaliation for whistleblowing. Id. at 4. He
requested a hearing. Id. at 2.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the removal. IAF, Tab 33, Initial Decision
(ID). He found that the agency proved each of its charges. ID at 2-40. As to the
appellant’s whistleblower reprisal claim, the administrative judge assumed that
the appellant’s allegation of a contractor performing an inherently governmental
function constituted a protected disclosure. ID at 46. The administrative judge
found that the appellant’s disclosure was a contributing factor in his removal. ID
at 46-47. However, the administrative judge found that the agency proved by
clear and convincing evidence that it would have removed the appellant in the
absence of his disclosures. ID at 47-70. Specifically, he found that the agency
had strong evidence in support of the removal, ID at 68-69, that there was no
evidence of a strong motive to retaliate against him, ID at 69, and that there was
no evidence regarding the agency’s treatment of similarly situated non-
whistleblowers, ID at 70. Finally, the administrative judge found that the
agency’s chosen penalty was reasonable. ID at 71-76.
The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He primarily challenges the
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have removed him in the absence of his disclosures. Id.3
at 8-9. He also challenges the administrative judge’s findings regarding the
penalty and charges. Id. at 9-10. The agency has responded in opposition to the
petition for review. PFR File, Tab 4.
ANALYSIS
The administrative judge correctly sustained the agency’s charges.
On petition for review, the appellant challenges the administrative judge’s
findings as to each of the charges. PFR File, Tab 1 at 6-7, 10. However, he
challenges those findings in only a conclusory manner, and he neither explains
why the findings are incorrect nor identifies the specific evidence in the record
that demonstrates the error. He has therefore not provided any basis for the
Board to disturb the administrative judge’s findings and credibility
determinations as to the charges. See Weaver v. Department of the Navy ,
2 M.S.P.R. 129, 133 (1980) (before the Board will undertake a complete review
of the record, the petitioning party must explain why the challenged factual
determination is incorrect, and identify the specific evidence in the record which
demonstrates the error).
The administrative judge correctly found that the appellant was not entitled to
corrective action based on his whistleblower reprisal claim.
The Whistleblower Protection Act prohibits retaliation against an employee
for whistleblowing. See 5 U.S.C. § 2302(b)(8)-(9). A burden shifting framework
applies to an employee’s whistleblowing defense against an adverse agency
personnel action, such as a suspension or removal. See Whitmore v. Department
of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). First, an agency must prove its
case for the adverse personnel action by a preponderance of the evidence. Id.
The burden then shifts to the employee to “prove by a preponderance of the
evidence that he or she made a protected disclosure under 5 U.S.C. § 2302(b)(8)
that was a contributing factor to the” personnel action. Id. “If the employee
establishes this prima facie case of reprisal for whistleblowing, the burden of
persuasion shifts to the agency to show by clear and convincing evidence that it4
would have taken ‘the same personnel action in the absence of such disclosure.’”
Id. (italics omitted) (quoting 5 U.S.C. § 1221(e)).
The administrative judge did not make a finding on whether the appellant
actually made protected disclosures. Instead, he assumed the appellant had done
so and, after finding that the disclosures were a contributing factor in the
removal, proceeded to determine whether the agency met its burden to show by
clear and convincing evidence that it would have removed the appellant in the
absence of his disclosures. It was error for the administrative judge to proceed to
the agency’s defense without first finding that the appellant had met his initial
burden. See 5 U.S.C. § 1221(e)(2) (providing that corrective action for
whistleblower reprisal “may not be ordered if, after a finding that a protected
disclosure was a contributing factor , the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel action in the
absence of such disclosure” (italics added)). However, for the reasons set forth
below, we find that this error does not require remand for further proceedings.
First, we find that the appellant had a reasonable belief that he was
disclosing a violation of law, rule, or regulation. An individual making a
disclosure may be protected from retaliation for whistleblowing based on his
reasonable belief that his disclosure evidenced one or more of the categories of
wrongdoing listed in 5 U.S.C. § 2302(b)(8), even when his belief is mistaken.
See Drake v. Agency for International Development , 543 F.3d 1377, 1382 (Fed.
Cir. 2008). The test for determining whether an employee’s belief regarding the
disclosed matter is reasonable is whether a disinterested observer with knowledge
of the essential facts known to or readily ascertainable by the employee could
reasonably conclude that the actions of the agency evidence the wrongdoing
disclosed. LaChance v. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999).
The appellant disclosed a number of issues to the Inspector General (IG),
including an allegation that the agency was allowing a contractor to perform
duties that constituted inherently governmental functions. IAF, Tab 13 at 37-38.5
Allowing a contractor to perform such functions would violate the Federal
Acquisition Regulations (FAR), see 48 C.F.R. § 7.503, and disclosures alleging
FAR violations can be protected, see Schnell v. Department of the Army ,
114 M.S.P.R. 83, ¶ 20 (2010). Among the inherently governmental functions
enumerated in the FAR is the direction and control of Federal employees.
48 C.F.R. § 7.503(c)(7). The appellant testified that, based on his direct
observation of the contractor in question, it seemed that the contractor was
assigning work or otherwise directing Federal employees in the performance of
their duties. IAF, Tab 30 (testimony of the appellant). Although the appellant’s
belief regarding inherently governmental functions may have turned out to be
incorrect, see IAF, Tab 12 at 11 (IG response to the appellant finding that the
allegation that the contractor was performing inherently governmental functions
was not substantiated), we find that there was sufficient basis for him to have a
reasonable belief that such a violation was occurring at the time he made his
disclosures.
Even if the appellant’s disclosures to the IG were not protected disclosures
under 5 U.S.C. § 2302(b)(8), they would nevertheless constitute protected activity
under 5 U.S.C. § 2302(b)(9)(C), which makes it a prohibited personnel practice to
take or fail to take or threaten to take or fail to take a personnel action against an
employee or applicant for “cooperating with or disclosing information to the
Inspector General (or any other component responsible for internal investigation
or review) of an agency, or the Special Counsel, in accordance with applicable
provisions of law.” See Special Counsel v. Hathaway , 49 M.S.P.R. 595, 612
(1991) (finding that section 2302(b)(9)(C) covers employee disclosures to the IG
or OSC that do not meet the precise terms of the actions described in section
2302(b)(8)), recons. denied, 52 M.S.P.R. 375, aff’d, 981 F.2d 1237 (Fed. Cir.
1992).
The administrative judge found that the appellant’s disclosures were a
contributing factor in his removal. ID at 46-47. The agency does not challenge6
that finding on review, and we see no reason to disturb it. We therefore proceed
to whether the agency met its burden to prove by clear and convincing evidence
that it would have removed the appellant in the absence of his disclosures.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: the strength of the
agency's evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The U.S. Court of Appeals for the Federal Circuit has further clarified that
“[e]vidence only clearly and convincingly supports a conclusion when it does so
in the aggregate considering all the pertinent evidence in the record, and despite
the evidence that fairly detracts from that conclusion.” Whitmore, 680 F.3d at
1368.
We agree with the administrative judge that the agency presented strong
evidence in support of the charge, which weighs in favor of the agency on the
clear and convincing evidence issue. See Pedeleose v. Department of Defense ,
110 M.S.P.R. 508, ¶ 24 (finding that the agency showed by clear and convincing
evidence that it would have suspended the appellant despite his whistleblowing
by, among other things, providing sufficient evidence to support the underlying
charges), aff’d per curiam , 343 F. App’x 605 (Fed. Cir. 2009). As noted above,
the appellant has not provided any basis on review for disturbing the
administrative judge’s findings as to the charges.
As to the second Carr factor, the administrative judge found that the
appellant’s disclosures “created no motive to retaliate.” ID at 69. He further
found that “the appellant had motives of his own,” specifically his animosity
towards the fellow agency employee whose work was allegedly being performed7
in large part by the contractor. ID at 70. For the reasons set forth below, we
modify the administrative judge’s analysis of the second Carr factor.
First, we do not agree that the appellant’s disclosures created no motive to
retaliate. Even if the individuals involved in the appellant’s removal were not
personally implicated in those disclosures, the fact remains that they are high-
ranking agency officials who supervised the work unit that was the subject of the
disclosures. Thus, there was at least some motive to retaliate. See Carr,
185 F.3d at 1322-23 (finding motive to retaliate based on criticisms of the
management of the office for which the acting official had responsibility);
Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 69 (2011).
Additionally, for purposes of the second Carr factor, the motive at issue is that of
the agency, not the appellant. An appellant’s motive in making disclosures is not
relevant in determining whether those disclosures are protected, 5 U.S.C.
§ 2302(f)(1)(C), and we find that it is also not relevant to whether the agency
would have taken the same action in the absence of the disclosures.
Although we find that there was at least some motive to retaliate against
the appellant, we do not find that such motive was particularly strong. As the
administrative judge correctly noted, the appellant’s disclosures were investigated
and did not lead to any findings of wrongdoing or adverse consequences for
agency officials. ID at 69. Thus, we modify the administrative judge’s findings
as to the second Carr factor to find that although there was some motive to
retaliate, that factor does not weigh particularly strongly against a finding that the
agency would have removed the appellant in the absence of his disclosures.
As for the third Carr factor, we agree with the administrative judge that
there is no record evidence concerning the agency’s treatment of similarly
situated non-whistleblowers. It is the agency that bears the burden of proving
that it would have taken the same action in the absence of the appellant’s
protected activity. Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 14
(2015). While the agency does not have an affirmative burden to produce8
evidence concerning each and every Carr factor, the Federal Circuit 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 such evidence if it exists
“may be at the agency’s peril,” and “may well cause the agency to fail to prove its
case overall.” Whitmore, 680 F.3d at 1374-75. Moreover, because it is the
agency’s burden of proof, when the agency fails to introduce relevant comparator
evidence, the third Carr factor cannot weigh in favor of the agency. Smith v.
General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v.
Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here,
given the agency’s failure to proffer any evidence pertaining to relevant
comparator evidence, Carr factor 3 does not weigh in the agency’s favor.
Nonetheless, weighing the Carr factors together, we find that the strength
of the evidence in support of the appellant’s removal outweighs the strength of
the motive to retaliate and any lack of evidence regarding the agency’s treatment
of similarly situated employees. Therefore, we agree with the administrative
judge that the agency met its burden of proving by clear and convincing evidence
that it would have removed the appellant absent his disclosures.
The administrative judge correctly affirmed the agency’s removal penalty.
On petition for review, the appellant’s argument regarding penalty relates
to the deciding official’s decision to offer a last chance agreement. PFR File, Tab
1 at 9-10. Specifically, he argues that the agency could not argue that it had no
choice but to remove him when it offered him a last chance agreement that would
have permitted him to remain employed. Id. at 10. For the reasons set forth
below, we modify the administrative judge’s penalty analysis to remove any
consideration of the last chance agreement.
In assessing the agency’s penalty determination, the administrative judge
noted the deciding official’s testimony that he considered the possibility of
rehabilitation through his offer of the last chance agreement, but that the
appellant’s refusal of that offer and rejection of any responsibility revealed that9
rehabilitation was not a viable option. ID at 76. However, the appellant’s
rejection of the last chance agreement could not have contributed to the decision
to remove him. The deciding official completed his analysis of the Douglas
factors on July 1, 2019, IAF, Tab 5 at 33, the same day he issued his decision to
remove the appellant, id. at 19-20. Attached to the removal decision letter was a
proposed last chance agreement, which the deciding official gave the appellant
7 calendar days to accept before the removal would be effective. Id. at 19, 24-26.
The appellant did not accept the agreement, and his removal was effective July
18, 2019. Id.at 17.
By the time the appellant had an opportunity to consider the last chance
agreement, the deciding official had already chosen removal as the appropriate
penalty. Thus, the appellant’s failure to accept the last chance agreement was not
part of the agency’s penalty determination and should not be part of the Board’s
penalty analysis. We therefore modify the administrative judge’s penalty analysis
to remove any consideration of the appellant’s failure to accept the last chance
agreement as an aggravating factor.
The appellant raises a separate issue regarding the last chance agreement.
He argues on review that the fact that the agency was willing to offer the
agreement establishes that a penalty less than removal would have sufficed. PFR
File, Tab 1 at 10. That the agency offered such a settlement that would have
permitted the appellant to remain employed does not establish that removal was
not the maximum reasonable penalty under the circumstances.
We find that the deciding official’s consideration of the relevant Douglas
factors as set forth in the document attached to the removal decision, IAF, Tab 5
at 28-33, was appropriate and that the penalty of removal did not exceed the
tolerable limits of reasonableness for the sustained misconduct. We therefore
sustain the appellant’s removal.10
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).
If you submit a petition for 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.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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any12
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s13
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 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 | Forestier_MarioDC-0752-19-0668-I-1__Final_Order.pdf | 2024-07-19 | MARIO FORESTIER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-19-0668-I-1, July 19, 2024 | DC-0752-19-0668-I-1 | NP |
913 | https://www.mspb.gov/decisions/nonprecedential/Bombeva_Tsvetana_D_SF-1221-23-0149-W-1_SF_0752_22_0350_I_1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TSVETANA D. BOMBEVA,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-23-0149-W-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tsvetana D. Bombeva , Reston, Virginia, pro se.
Lawrence Lynch , Esquire, Randolph AFB, 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
found that her individual right of action (IRA) appeal was untimely filed, and
equitable tolling was not applicable. On petition for review, the appellant argues
that she thought she filed her appeal on January 4, 2023, which would have been
timely, the administrative judge belatedly raised the timeliness issue 3 months
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
into the appeal, and the administrative judge was biased against her. Petition for
Review (PFR) File, Tab 1. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2Unlike the Board’s regulatory time limits for appeals filed under 5 U.S.C.
§ 7701, the statutory time limit for filing an IRA appeal cannot be waived for
good cause shown because there is no statutory mechanism for doing so.
Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 9 (2014). The filing
deadline might be subject to equitable tolling, under which the filing period is
suspended for equitable reasons, such as when the complainant has been induced
or tricked by her adversary’s misconduct into allowing the deadline to pass. Id.,
¶ 10. Equitable tolling is a rare remedy that is to be applied in unusual
circumstances and generally requires a showing that the litigant has been
pursuing her rights diligently and some extraordinary circumstances stood in her
way. Id. Equitable tolling does not extend to mere “excusable neglect.” Wood
v. Department of the Air Force , 54 M.S.P.R. 587, 593 (1992) (quoting Irwin
v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990)). The appellant does
not allege that she was induced or tricked by the agency or the Office of Special2
Counsel, and she has not identified any extraordinary circumstances that
prevented her from diligently pursuing her rights. Even if we credit the
appellant’s account of events, we agree with the administrative judge that the
circumstances that she described constitute “garden variety neglect.” Initial
Appeal File (IAF), Tab 16, Initial Decision at 17; see IAF, Tab 15 at 5 (stating
that when she “logged in the MSPB system to check on the status of [her] appeal
[on January 17, 2023, she] noticed that [her] filing never went through and was
sitting in [her] account as a draft”). Thus, we agree with the administrative judge
that the appeal was untimely filed, and equitable tolling does not apply.
¶3The appellant asserts that the administrative judge erred in not raising the
timeliness issue for 3 months. PFR File, Tab 1 at 5. Importantly, however, she
does not allege that there was any evidence that she was unable to obtain but
would have been able to obtain if the administrative judge had raised the
timeliness issue earlier.
¶4The appellant also contends that the administrative judge “[did] not hold the
agency to the same standards that it held [her].” Id. at 9. She also states that the
administrative judge “acted with evident bias” by requiring her to prove
jurisdiction while simultaneously “ignoring” the agency’s “repeated” failure to
follow deadlines, among other things. Id. at 5-6. An administrative judge’s
conduct during the course of a Board proceeding warrants a new adjudication
only if his comments or actions evidence “a deep-seated favoritism or antagonism
that would make fair judgment impossible.” Bieber v. Department of the Army ,
287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States ,
510 U.S. 540, 555 (1994)). We find no evidence of any such favoritism or
antagonism in the record in this matter.
¶5Because we agree with the administrative judge that the IRA appeal was
untimely filed and equitable tolling does not apply, we need not address the
appellant’s arguments regarding substantive issues in the underlying appeal. See
Heimberger, 121 M.S.P.R. 10, ¶ 13. 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 | Bombeva_Tsvetana_D_SF-1221-23-0149-W-1_SF_0752_22_0350_I_1_Final_Order.pdf | 2024-07-19 | TSVETANA D. BOMBEVA v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-23-0149-W-1, July 19, 2024 | SF-1221-23-0149-W-1 | NP |
914 | https://www.mspb.gov/decisions/nonprecedential/Cody_AshleyAT-315H-23-0036-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ASHLEY CODY,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
AT-315H-23-0036-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ashley Cody , Austell, Georgia, pro se.
Kathryn C. Hagerman and Monica Moukalif , Atlanta, Georgia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her probationary termination for lack of jurisdiction. For
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2The agency appointed the appellant to a career-conditional competitive
service position as a Safety and Occupational Health Specialist effective
March 27, 2022, subject to a 1 -year probationary period. Initial Appeal File
(IAF), Tab 1 at 6. The agency subsequently notified the appellant during her
probationary period that she would be terminated, effective October 4, 2022, for
performance problems, time and attendance issues, and misuse of her
Government-issued credit card. Id. at 7-9.
¶3The appellant filed a timely Board appeal alleging that the agency should
have given her “the option to resolve the matter through an alternative dispute
resolution before termination.” Id. at 3. The administrative judge ordered the
appellant to file evidence and argument demonstrating that the Board had
jurisdiction over her appeal, but the appellant did not respond. IAF, Tab 3. In an
initial decision dated November 28, 2022, the administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to raise a
nonfrivolous allegation of marital status discrimination, or that her termination
was based on partisan political reasons or pre-employment misconduct. IAF,
Tab 9, Initial Decision (ID) at 4. The initial decision informed the appellant that
it would become the Board’s final decision on January 2, 2023, unless she filed a
petition for review by that date. ID at 4.
¶4The appellant filed a petition for review on January 17, 2023, asserting that
the Board should reconsider her appeal “due to [her] status of being a protected
veteran.” Petition for Review (PFR) File, Tab 1 at 2. In a January 18, 2023
acknowledgement letter from the Office of the Clerk of the Board, the Acting
Clerk informed the appellant that the Board may dismiss her petition for review
as untimely filed unless she submitted a motion showing that her petition for2
review was timely filed or that good cause existed for the filing delay. PFR File,
Tab 2. The Clerk’s Office enclosed a “Motion to Accept Filing as Timely and/or
to Ask the Board to Waive or Set Aside the Time Limit” and informed the
appellant that she had until February 2, 2023, to file such motion. Id. The
appellant did not respond. The agency filed a response to the appellant’s petition
for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5A petition for review generally must be filed within 35 days after the date of
issuance of the initial decision or, if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received the initial decision. 5 C.F.R. § 1201.114(e). The
appellant does not claim that she received the initial decision more than 5 days
after it was issued. PFR File, Tab 1. Further, because the appellant elected to be
an e-filer, she is deemed to have received the initial decision on the date of
electronic submission, November 28, 2022. IAF, Tab 1 at 2, Tab 10; see Palermo
v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R.
§ 1201.14(m)(2) (2023). Therefore, her petition for review was due by January 2,
2023, and it is thus over 2 weeks late.
¶6The Board will waive its filing deadline only upon a showing of good cause
for the delay. Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 5
(2014); 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing
of an appeal, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant
has shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time3
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to her inability to timely file her petition for review. Gaetos,
121 M.S.P.R. 201, ¶ 5; Moorman v. Department of the Army , 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶7Here, we find that the appellant has failed to show good cause for a waiver
of the filing deadline. The appellant did not submit a motion showing that her
petition for review was timely filed or that good cause existed for the filing delay
or otherwise respond to the Clerk’s acknowledgement order informing her that
her petition for review was untimely filed. See 5 C.F.R. § 1201.114(g). She has
not submitted any evidence or argument on the timeliness of her petition for
review. Further, her 2-week filing delay is not insignificant. See, e.g., Crozier v.
Department of Transportation , 93 M.S.P.R. 438, 441 (2003) (finding a 13-day
delay not minimal); Winfrey v. National Archives and Records Administration ,
88 M.S.P.R. 403, ¶ 6 (2001) (finding that a 48-day delay was not minimal).
Although the appellant’s pro se status is a factor weighing in her favor, it is
insufficient to excuse her untimeliness. See Allen v. Office of Personnel
Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a pro se
appellant’s 14-day, unexplained delay in filing a petition for review).
¶8As noted above, the appellant stated in her petition for review that the
Board should reconsider her appeal “due to [her] status of being a protected
veteran.” PFR, Tab 1 at 2. She submits a 1-page letter from the Department of
Veterans Affairs indicating that she has a service-connected disability rating of
100%, effective May 2020, but she does not provide any other information or
explanation. Id. at 3. It is unclear whether the appellant is attempting to raise a
claim of discrimination based on military service under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA). Under USERRA, a person who has
performed “service in a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of4
employment . . . on the basis of that . . . performance of service.” 38 U.S.C.
§ 4311(a); Searcy v. Department of Agriculture , 115 M.S.P.R. 260, ¶ 6 (2010).
To establish Board jurisdiction over a USERRA discrimination appeal, an
appellant must allege the following: (1) she performed duty or has an obligation
to perform duty in a uniformed service of the United States; (2) the agency denied
her initial employment, reemployment, retention, promotion, or any benefit of
employment; and (3) the denial was due to the performance of duty or obligation
to perform duty in the uniformed service.2 Searcy, 115 M.S.P.R. 260, ¶ 7. Here,
the appellant did not indicate on her initial appeal form that she was pursuing a
USERRA claim, and she has not made even vague allegations that would
establish Board jurisdiction over a USERRA discrimination appeal in either her
initial appeal or on review. See IAF, Tab 1; PFR File, Tab 1; see also Wilson v.
Department of the Army , 111 M.S.P.R. 54, ¶ 9 (2009) (stating that a claim of
discrimination under USERRA should be broadly and liberally construed in
determining whether it is nonfrivolous, particularly when the appellant is pro se).
However, there is no time limit to filing a USERRA appeal. 5 C.F.R. § 1208.12.
If the appellant believes she has been the victim of a violation of section 4311(a),
she may file an appeal with the Board.3 38 U.S.C. § 4324(b); Searcy,
115 M.S.P.R. 260, ¶ 6.4
2 The Board has jurisdiction over USERRA appeals, even when an employee was
serving a probationary period at the time of the alleged violation. Wright v. Department
of Veterans Affairs , 73 M.S.P.R. 453, 454 (1997).
3 An individual may choose to file a USERRA complaint with the Secretary of Labor
and have the Secretary investigate her complaint. 38 U.S.C. § 4322(a). If the
individual files such a complaint with the Secretary of Labor, she may thereafter file an
appeal with the Board regarding her USERRA claim pursuant to 38 U.S.C. § 4324(b)
(2). If the individual does not elect to apply to the Secretary for assistance under
section 4322(a), she may file directly with the Board. 38 U.S.C. § 4324(b)(1).
4 To the extent the appellant may wish to pursue other veterans’ preference claims,
under the Veterans Employment Opportunities Act of 1998 (VEOA), a “preference
eligible who alleges that an agency has violated such individual’s rights under any
statute or regulation relating to veterans preference may file a complaint with the
Secretary of Labor” and, after that complaint process is exhausted, may then file an
appeal with the Board. 5 U.S.C. § 3330a. A VEOA complaint must be filed with DOL5
¶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 its lack of jurisdiction over the appellant’s probationary
termination appeal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
within 60 days after the date of the alleged violation. 5 U.S.C. § 3330a(a)(2). The
exhaustion requirement is satisfied if the appellant filed a complaint with DOL and
DOL either: (1) sent the appellant written notification that it was unable to resolve the
complaint; or (2) did not resolve the complaint within 60 days and the appellant notified
DOL of her intention to appeal to the Board. Burroughs v. Department of Defense , 114
M.S.P.R. 647, ¶ 7 (2010), aff’d, 426 F. App’x 897 (Fed. Cir. 2011).
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Cody_AshleyAT-315H-23-0036-I-1_Final_Order.pdf | 2024-07-19 | ASHLEY CODY v. DEPARTMENT OF LABOR, MSPB Docket No. AT-315H-23-0036-I-1, July 19, 2024 | AT-315H-23-0036-I-1 | NP |
915 | https://www.mspb.gov/decisions/nonprecedential/Pulley_Ronnell_L_PH-1221-19-0009-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONNELL LAMONT PULLEY,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
PH-1221-19-0009-W-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronnell Lamont Pulley , Millville, New Jersey, pro se.
Ted Booth , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for failure to prosecute. For
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant, through his attorney representative, filed this IRA appeal
with the Board. Initial Appeal File (IAF), Tab 2 at 1-6. As discussed in the
initial decision, the appellant appeared to abandon his case after his attorney
withdrew from representing him and after he requested a hearing. IAF, Tab 39,
Initial Decision (ID) at 1-2. Without holding the requested hearing, the
administrative judge issued an initial decision dismissing the IRA 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 December 19, 2019, unless a petition for
review was filed by that date. ID at 3. The administrative judge further informed
the appellant that, if 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. The record reflects that the appellant received the initial decision
on November 14, 2019, the date of issuance.2 ID at 1; IAF, Tab 40; see 5 C.F.R.
§ 1201.14(m)(2) (2019) (providing that Board documents served electronically on
registered e-filers are deemed received on the date of electronic submission).
2 The certificate of service reflects that, on November 14, 2019, the initial decision was
served electronically by email on the appellant, who had registered as an e-filer.
IAF, Tab 1 at 2, Tab 2 at 2, Tab 40; see 5 C.F.R. § 1201.14(j)(1) (2019) (providing for
the electronic service of Board documents on e-filers).2
The appellant does not argue otherwise. PFR File, Tab 1 at 3, 5. Thus, the
deadline for filing a petition for review was December 19, 2019, 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 December 20, 2019, one day
past the filing deadline.3 PFR File, Tab 1. 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 stated that such a motion must be sent by
January 7, 2020. Id. at 2. The appellant has not filed any argument or evidence
in response to 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
delay, the reasonableness of his excuse and his showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existence
of circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Moorman v.
Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167
(Fed. Cir. 1996) (Table).
3 The appellant simply claims on review, “The filing was made on the 18th.” PFR File,
Tab 1 at 3. We find that this conclusory statement, without more, is insufficient to
rebut the fact that his petition for review shows that the date of electronic submission
was December 20, 2019. PFR File, Tab 1; 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) (2019)
(same).3
In his petition for review, the appellant raises the following arguments:
it has been difficult to attend to this case due to personal circumstances such as
martial separation, homelessness, unemployment, a pending decision on his claim
for Social Security Disability Insurance benefits, and having to support his family
of three young children and a wife; his attorney withdrew from representation
primarily due to financial reasons but he continues to seek representation; he asks
for another opportunity to be compensated for the mental and other suffering he
endured as a result of his wrongful termination and unfair treatment by the
agency; his reputation has been destroyed and he has lost 15 years of good service
as a reservist in the Air National Guard; and granting a petition for review would
express the Board’s support for military families like his and would promote
justice and freedom.4 PFR File, Tab 1 at 5-6.
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 claims
regarding personal and financial difficulties and his inability to retain counsel do
not establish good cause. PFR File, Tab 1 at 5; see Tamayo v. Office of Personnel
Management, 88 M.S.P.R. 685, ¶ 7 (2001) (finding that the inability to secure a
representative and financial difficulty do not establish good cause); Crisp v.
Department of Veterans Affairs , 73 M.S.P.R. 231, 234 (1997) (finding no good
4 It is unclear whether some of the appellant’s arguments on review address his apparent
failure to prosecute the initial appeal or the untimeliness of his petition for review.
PFR File, Tab 1 at 5. However, given his pro se status, we will liberally construe such
arguments as addressing the untimeliness of his petition for review. See, e.g., Melnick
v. Department of Housing and Urban Development , 42 M.S.P.R. 93, 97-98 (1989)
(observing that parties without legal representation are not required to plead issues with
precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).4
cause when the appellant stated that he was going through divorce proceedings,
was involved in a lawsuit, and was seeking employment to avoid incarceration for
apparently failing to pay child support). Although the appellant generally claims
that he has been diagnosed with mental health conditions, he has not alleged that
they hindered his ability to make a timely filing.5 PFR File, Tab 1 at 5.
Further, the appellant’s arguments on the merits of his termination are not
relevant to the untimeliness of his petition for review. Id. at 5-6; see Marasco v.
U.S. Postal Service , 66 M.S.P.R. 555, 558 (1995). In addition, the appellant has
not presented any evidence of circumstances beyond his control or of unavoidable
casualty or misfortune that prevented him from timely filing a petition for review.
Therefore, under the 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 IRA appeal.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
5 The appellant received explicit information regarding the legal standard for
establishing good cause based on an illness. PFR File, Tab 1 at 3, Tab 2 at 7 n.1;
see Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437-38 (1998).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Pulley_Ronnell_L_PH-1221-19-0009-W-1__Final_Order.pdf | 2024-07-19 | RONNELL LAMONT PULLEY v. DEPARTMENT OF JUSTICE, MSPB Docket No. PH-1221-19-0009-W-1, July 19, 2024 | PH-1221-19-0009-W-1 | NP |
916 | https://www.mspb.gov/decisions/nonprecedential/Oakley_TravisSF-0752-22-0543-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS OAKLEY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-22-0543-I-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Manuel Bayon , Chula Vista, California, for the appellant.
Allan Robert Thorson , Chula Vista, 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 agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal based on the charge of Refusal to Provide
Specimen for Federally Regulated Random Drug Test to a 75-day suspension. On
petition for review, the agency argues, among other things, 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).
judge erred in concluding that the deciding official did not appropriately consider
all of the relevant mitigating factors, that removal was not beyond the bounds of
reasonableness, and that mitigation of the penalty in this case is not supported by
precedent. 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).
ORDER
¶2We ORDER the agency to cancel the removal action and substitute in its
place a 75-day suspension effective July 14, 2022. 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.
¶3We 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 the2
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.
¶4We 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).
¶5No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶6For 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. If3
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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
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. | Oakley_TravisSF-0752-22-0543-I-1__Final_Order.pdf | 2024-07-19 | TRAVIS OAKLEY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-22-0543-I-1, July 19, 2024 | SF-0752-22-0543-I-1 | NP |
917 | https://www.mspb.gov/decisions/nonprecedential/Fitzig_LouisDC-1221-20-0502-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOUIS FITZIG,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-20-0502-W-1
DATE: July 19, 2024
THIS ORDER IS NONPRECEDENTIAL1
Louis Fitzig , Alexandria, Virginia, pro se.
Reagan N. Clyne , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
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 reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, FIND that the appellant has established the
Board’s jurisdiction over his appeal, and REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant, a GS-13 Special Agent for the Secret Service, is employed
as a polygraph examiner in the Forensic Services Division. Initial Appeal File
(IAF), Tab 1 at 1, Tab 5 at 5. He alleged in an Office of Special Counsel (OSC)
complaint that the agency retaliated against him for his purported protected
disclosures consisting of a complaint and a subsequent sworn statement to the
agency’s Inspection Division that three agency officials had misused their
positions to grant an unfair advantage, i.e., polygraph retesting without just cause,
to the son of an agency supervisor (a legacy applicant) who failed his polygraph
examination. IAF, Tab 1 at 27-28. The appellant explained that, in his
experience, non-legacy applicants who failed their polygraph examination were
not retested, but were instead disqualified for consideration in the employment
process. Id. According to the appellant’s OSC complaint and subsequent
communications with OSC, he suffered numerous personnel actions in reprisal for
his disclosures. Id. at 28. Thereafter, OSC terminated its investigation into the
appellant’s complaint and this IRA appeal followed. IAF, Tab 1 at 31-32. The
appellant request a hearing in his Board appeal. IAF, Tab 1 at 2.
The administrative judge informed the appellant of his jurisdictional burden
and afforded the parties an opportunity to submit evidence and argument.
IAF, Tabs 2-3. Both parties responded. IAF, Tabs 5, 7-9.
In her initial decision, the administrative judge found that the appellant
exhausted seven personnel actions with OSC, specifically that he was: (1) not
selected for a lateral reassignment in May 2018, (2) given an oral counseling with
written documentation on May 24 and June 14, 2018, for improper conduct during2
two polygraph examinations he conducted, (3) removed from a leadership training
on June 4, 2018, (4) temporarily suspended from his polygraph examination
duties beginning June 15, 2018, (5) issued a letter of reprimand in February 2019
for failure to follow policy, (6) given a lowered performance reviews in 2018 and
2019, and (7) subjected to ongoing marginalization and alienation. IAF, Tab 11,
Initial Decision (ID) at 12. The administrative judge also found that the appellant
failed to exhaust his administrative remedies before OSC as to three other alleged
personnel actions, (1) a negative determination of competence to conduct
polygraph exams from the National Center for Credibility Assessment (NCCA),
(2) the agency’s failure to expunge a letter of reprimand from his personnel file,
and (3) his continued suspension from collateral duties. ID at 16.
The administrative judge then considered the appellant’s two disclosures to the
agency’s Inspection Division and found that he failed to make a nonfrivolous
allegation that the disclosures he identified were protected under 5 U.S.C.
§ 2302(b)(8). ID at 17-24; IAF, Tab 1 at 28. Thus, without holding the requested
hearing, the administrative judge dismissed the appeal for lack of jurisdiction.
See ID.
In his petition for review, the appellant argues, among other things, that he
exhausted his administrative remedies before OSC and that he had a reasonable
belief that he made a protected disclosure that was a contributing factor to the
agency’s purported retaliatory actions.2 Petition or Review (PFR) File, Tab 5
2 In his petition for review, the appellant argues that the administrative judge
improperly issued the initial decision before the time allowed by the Board’s
regulations for him to respond to the agency’s motion to dismiss for lack of jurisdiction
had concluded, denying him the right to respond to additional arguments raised in the
agency’s motion. Petition for Review (PFR) File, Tab 5 at 20; 5 C.F.R. § 1201.55(c).
The administrative judge’s jurisdictional order provided that the deadline for the agency
response on jurisdiction would be April 27, 2020, and that, unless she ordered
otherwise, the record would close on that date. IAF, Tab 3 at 8. The order also
provided that, under the Board’s regulations, a party is allowed to respond to new
evidence and argument submitted by the other party just prior to the close of the record.
5 C.F.R. § 1201.59(c). It is not clear to what new argument the appellant intended to
respond. Nevertheless, because we are remanding this appeal to the Washington3
at 7-19. The agency has filed a response to the appellant’s petition for review,
and the appellant has filed a reply to the agency’s response. PFR File, Tabs 7-8.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant established jurisdiction over his IRA appeal.
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). A protected disclosure is one that an appellant 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 or safety. Mudd v. 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 of one of the other conditions set forth in 5 U.S.C.
§ 2302(b)(8). Id. Once an appellant establishes jurisdiction over his IRA appeal,
he is entitled to a hearing on the merits of his claim at which point he must prove
his allegations by preponderant evidence. Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016).
Regional Office for a hearing on the merits, we need not address the appellant’s claim
on review that the administrative judge erred by not affording him sufficient time to
respond to the agency’s jurisdictional response. Perkins v. Department of Veterans
Affairs, 98 M.S.P.R. 250, ¶ 25 n.6 (2005).4
The appellant established OSC exhaustion of two additional
personnel actions which the administrative judge found that he failed
to raise before OSC.
In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The purpose of the requirement that an appellant
exhaust his remedies with OSC prior to filing an IRA appeal with the Board is to
give OSC “the opportunity to take corrective action before involving the Board in
the case.” Ward v. Merit Systems Protection Board , 981 F.2d 521, 526 (Fed. Cir.
1992). The Whistleblower Protection Enhancement Act provides that, if OSC
finds that there is a substantial likelihood that the information it received
discloses a violation of the Act, it “shall transmit the information to the head of
the agency involved for investigation and report.” Id. (making this finding based
on the same language in the prior Whistleblower Protection Act); see 5 U.S.C.
§ 1213(b), (c). These inquiries by OSC and their transmittal to agencies for
remedial action are a major component of OSC’s work. Ward, 981 F.2d at 526.
To satisfy the exhaustion requirement, the appellant must provide to OSC a
sufficient basis to pursue an investigation that might lead to corrective action.
Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10.
An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s preliminary determination letter and other letters from OSC
referencing any amended allegations, and the appellant’s written responses to
OSC referencing the amended allegations. Mason, 116 M.S.P.R. 135, ¶ 8.
To establish Board jurisdiction, the appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
5 C.F.R. § 1201.57(c)(1).
The appellant provides copies of his November and December 2019 emails
to OSC establishing exhaustion over two of the personnel actions for which, as5
noted above, the administrative judge found that he had failed to exhaust his
administrative remedies. PFR File, Tab 5 at 40, 57-60; ID at 16. In his emails
with OSC, the appellant asserted, among other things, that the agency failed to
rescind the February 2019 letter of reprimand for failure to follow policy, and
continued its suspension of his collateral duties, i.e., mentoring and quality
control review. PFR File, Tab 5 at 57-59. Because the record therefore shows
that the appellant raised these two personnel actions with OSC, we find that the
appellant established that he exhausted his administrative remedies before OSC
regarding these two matters, in addition to the seven personnel actions identified
above. PFR File, at 5 at 57-59; ID at 12, 16.
As noted previously, before the administrative judge the appellant raised as
a personnel action a claim that the NCCA issued him a negative determination of
competence. IAF, Tab 5 at 8-9; ID at 16. The appellant has not shown that this
matter was not raised in his OSC complaint or in his subsequent emails with
OSC. IAF, Tab 1 at 16-31, PFR File, Tab 5 at 57-59. Because the appellant failed
to show that he raised the issue before OSC, the administrative judge correctly
found that the appellant failed to establish OSC exhaustion over the claimed
personnel action. ID at 16; Mason, 116 M.S.P.R. 135, ¶ 8.
The appellant made a nonfrivolous allegation that he made a
protected disclosure.
Concerning whether he made a nonfrivolous allegation of a protected
disclosure, the appellant challenges the administrative judge’s finding that his
belief that a retest had been ordered for the legacy applicant was based on
speculation, and that he could have readily ascertained that no retest had been
sought for the legacy applicant. PFR File, Tab 5 at 41; ID at 19. The appellant
maintains that he had a reasonable belief that a retest was ordered for the legacy
applicant based on the statements of his colleague, both written and oral, and his
observation of a conversation between the colleague and one of the agency6
officials he accuses of retaliation, that a retest had been ordered. PFR File, Tab 5
at 41; IAF, Tab 9 at 116-17.
As noted above, the appellant asserted in his OSC complaint that he
submitted a complaint and a sworn statement to the agency Inspection Division
that certain agency officials had misused their positions to grant an unfair
advantage, i.e., polygraph retesting without just cause, to a legacy job applicant
who had failed his polygraph examination. IAF, Tab 1 at 27, Tab 5 at 14-15.
He submitted a sworn statement to that effect, averring therein that another agent
told him that one of the agency officials had asked the agent if he was available
to retest the legacy applicant. IAF, Tab 5 at 17.
Nevertheless, in the initial decision, the administrative judge determined
that the appellant did not have a reasonable belief that he had disclosed an abuse
of authority. ID at 18-23. She found that the agency’s evidence demonstrated
that the appellant’s belief was unreasonable because, among other things, it was a
readily ascertainable fact that no retest had been sought. ID at 20. In that regard,
the administrative judge remarked that, if the appellant had just asked one of the
agency officials he had accused of improperly seeking the retest, he could have
cleared up the misunderstanding and resolved the issue without further escalation.
Id. The administrative judge reviewed the appellant’s contentions, but ultimately
determined that the appellant’s evidence and argument failed to controvert the
agency’s “arguments, explanations, and evidence in support of its position that
the appellant did not have a reasonable belief that his disclosure evidenced a
violation of Title 5 of the United States Code, section 2302(b)(8).” ID at 24.
Thus, “[h]aving carefully considered the parties’ evidence and argument,” she
found that the appellant did not have a “reasonable belief” that his disclosure
evidenced a violation of 5 U.S.C. § 2302(b)(8), and dismissed the appeal for lack
of jurisdiction. Id.
As explained below, the administrative judge should not have credited the
agency’s evidence in determining whether the appellant made a nonfrivolous7
allegation of jurisdiction sufficient to warrant a hearing on his IRA appeal.
After the issuance of the initial decision in this appeal, the U.S. Court of Appeals
for the Federal Circuit held in Hessami v. Merit Systems Protection Board , 979
F.3d 1362, 1369 (Fed. Cir. 2020), that:
[W]hen evaluating the Board’s jurisdiction over a whistleblower
action, the question of whether the appellant has non-frivolously
alleged protected disclosures that contributed to a personnel action
must be determined based on whether the employee alleged sufficient
factual matter, accepted as true, to state a claim that is plausible on
its face. 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 to an adverse personnel action.
The initial decision reflects that the administrative judge credited the
agency’s interpretation of the evidence in finding that the appellant failed to
make a nonfrivolous allegation that he made a protected disclosure. ID at 24. At
this stage of an IRA appeal, however, the appellant need only make an allegation
that, if true, makes out a prima facie case of whistleblowing that is plausible on
its face. Hessami, 979 F.3d at 1369; Linder, 122 M.S.P.R. 14, ¶ 6. The appellant
does not bear the burden of controverting the agency’s evidence as to whether he
had a reasonable belief that he made a protected disclosure and the administrative
judge erred by requiring him to do so. Hessami, 979 F.3d at 1369. Thus, the
administrative judge erred in denying jurisdiction based on her consideration of
the agency’s arguments regarding the proper interpretation of the evidence.
Id. at 1371. Furthermore, we find that the appellant’s allegations are sufficient to
constitute a nonfrivolous allegation that he made a protected disclosure. 8
The appellant made a nonfrivolous allegation that his disclosure was
a contributing factor in a personnel action.
To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact
or the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. E.g., Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 13 (2016). 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.
The record shows that the appellant first contacted the Inspection Division
on March 23, 2018. IAF, Tab 5 at 14-15. The first of the alleged personnel
actions that the appellant claimed the agency took in retaliation was his May 2018
nonselection, closely followed by several other actions, and continuing until his
March 2019 email contact with OSC. ID at 12; PFR File, Tab 5 at 56-59. As for
the knowledge component of the test, the appellant argued below, and alleged in
his OSC complaint, that the agency’s Inspections Division notified his chain of
command of his complaint, and took statements concerning his allegations.
IAF, Tab 5 at 7, 9, 19, 26. Given the appellant’s claim that his chain of command
was aware of his complaint as of March 2018, and his contention that all of the
actions that the agency took in reprisal occurred in 2018 or 2019, we find that
under the knowledge/timing test, the appellant has made a nonfrivolous allegation
that his March 2018 disclosures were a contributing factor in the personnel
actions he has alleged subsequently occurred in 2018 and 2019. See Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) (finding that a personnel9
action taken within approximately 1 to 2 years of the appellant’s disclosures
satisfies the knowledge/timing test).
As set forth above, we find that the appellant established that he exhausted
his administrative remedies as to nine alleged personnel actions, i.e., that the
agency: (1) did not select him for a lateral reassignment in May 2018, (2) gave
him an oral counseling with written documentation on May 24 and June 14, 2018
for improper conduct during two polygraph examinations he conducted,
(3) removed him from a leadership training on June 4, 2018, (4) temporarily
suspended him from his polygraph examination duties beginning June 15, 2018,
(5) issued him a letter of reprimand in February 2019 for failure to follow policy,
(6) lowered his performance reviews in 2018 and 2019, (7) subjected him to
ongoing marginalization and alienation, (8) failed to rescind the February 2019
Letter of Reprimand for failure to follow policy, and (9) continued its suspension
of his secondary collateral duties. We also find that he made a nonfrivolous
allegation that he made a protected disclosure that was a contributing factor in
those personnel actions. Accordingly, we find that the appellant has established
jurisdiction over his IRA appeal and is entitled to a hearing on the merits.
Hessami, 979 F.3d at 1369; Herman v. Department of Justice , 115 M.S.P.R. 386,
¶¶ 6-8 (2011). On remand, the administrative judge shall afford the appellant an
opportunity to prove by preponderant evidence that his March 2018 disclosures
were protected and that they were a contributing factor in the nine personnel
actions he exhausted before OSC. See, e.g., Runstrom v. Department of Veterans
Affairs, 123 M.S.P.R. 169, ¶ 12 (2016). If the administrative judge finds that the
appellant proved his case in chief, she must determine whether the agency has
proved by clear and convincing evidence that it would have taken these same
personnel actions even in the absence of the appellant’s disclosures. See id. 10
ORDER
For the reasons discussed above, we REMAND this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Fitzig_LouisDC-1221-20-0502-W-1_Remand_Order.pdf | 2024-07-19 | LOUIS FITZIG v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-20-0502-W-1, July 19, 2024 | DC-1221-20-0502-W-1 | NP |
918 | https://www.mspb.gov/decisions/nonprecedential/Ragland_VeronicaDC-1221-22-0243-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERONICA RAGLAND,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-1221-22-0243-W-1
DATE: July 19, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Veronica Ragland , Phoenix, Arizona, pro se.
Suzanne Nicole Nardone , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action in this individual right of
action appeal. On petition for review, the appellant argues that the agency failed
to rebut her prima facie case of reprisal for her protected disclosures about
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
budgetary matters. Petition for Review (PFR) File, Tab 1. She argues that the
evidence in support of her June 2021 performance overview and September 2021
probationary termination is weak, id. at 10-14, 16-23, and the motive to retaliate
on the part of relevant officials was strong, id. at 7-10, 15, 23-26. The appellant
also suggests that the agency may have had relevant evidence about potential
comparators that the agency simply failed to produce.2 Id. at 15-16, 26.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant did not prove that an alleged disclosure about
reimbursement for Government Accounting Office (GAO) engagements was
protected, we AFFIRM the initial decision.
2 Even if the lack of comparator evidence caused the third factor of the clear and
convincing analysis to weigh slightly against the agency, we believe that the strength of
the agency’s reasons for taking the action and the slight motive to retaliate still support
a finding that the agency proved by clear and convincing evidence that it would have
taken the same personnel actions absent the appellant’s protected disclosures.
See Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016) (finding that
while the absence of evidence on the third factor may remove it from the analysis, its
absence may also “cut slightly against” the agency); see also Rickel v. Department of
the Navy, 31 F.4th 1358, 1364-65 (Fed. Cir. 2022) (noting that the absence of evidence
on the third factor “will not necessarily” prevent the agency from meeting its burden). 2
The administrative judge substantively addressed, on the merits, the
appellant’s allegations of reprisal for one alleged disclosure about the possible
misdirection of funds allocated for Federal Parent Locator Service (FPLS) to
other agency priorities and another alleged disclosure about the agency
preventing some states and localities from claiming federal financial participation
of FPLS fees. Initial Appeal File (IAF), Tab 32, Initial Decision (ID) at 8-39.
She found that the appellant proved that those disclosures were protected based
on the appellant’s reasonable belief that she was revealing the kinds of
wrongdoing covered under the whistleblower protection statutes. ID at 12-20.
The administrative judge also found that the agency established that these
protected disclosures were a contributing factor in the appellant’s June 2021
performance overview and her September 2021 probationary termination. ID
at 20-21. But the administrative judge denied corrective action after finding that
the agency proved that it would have taken the same personnel actions in the
absence of the aforementioned disclosures. ID at 21-39.
Separately, the administrative judge indicated that the appellant seemed to
abandon a third disclosure about the agency failing to obtain reimbursement for
GAO engagements, which was mentioned in an initial pleading. ID at 12; IAF,
Tab 1 at 22, 26. Nothing in the appellant’s petition for review suggests
otherwise. PFR File, Tab 1. We nevertheless modify the initial decision to find
that, even if the appellant did not abandon the disclosure, the appellant failed to
meet her burden of proving that it was a separate protected disclosure.
A protected disclosure is a disclosure that an appellant 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. Turner v. Department of Agriculture, 2023 MSPB 25,
¶ 14. A close-out letter from the Office of Special Counsel (OSC), which first
investigated the appellant’s claims of whistleblower reprisal, described the
alleged disclosure at issue as one revealing that the agency had failed to collect3
and seek reimbursement for GAO engagements. IAF, Tab 1 at 26. We found
what seem to be some corresponding references in the appellant’s initial
complaint to OSC. Id. at 22. However, the appellant has not directed us to any
further argument or evidence to prove that she made this disclosure or prove that
it is protected under the whistleblower statute. We nevertheless reviewed the
appellant’s various pleadings and found numerous instances of the appellant
indicating that she complained to GAO but no further mention of her making
protected disclosures about reimbursements for GAO engagements. IAF,
Tabs 4, 6, 26.
We recognize, as the administrative judge did, that each of the appellant’s
alleged disclosures generally involve budget and funding issues made over the
same period. ID at 12. But it was the appellant’s burden of proving by
preponderant evidence that she made protected disclosures. In the absence of
further argument and reference to specific evidence, we find that the appellant has
not proven, by preponderant evidence, that she made an additional protected
disclosure about reimbursements for GAO engagements, separate from her other
protected disclosures. We modify the initial decision accordingly. Regardless of
her intent to pursue or abandon this disclosure, the appellant did not prove that it
was protected.
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
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
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at5
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,6
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 115-195,7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | Ragland_VeronicaDC-1221-22-0243-W-1__Final_Order.pdf | 2024-07-19 | VERONICA RAGLAND v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-1221-22-0243-W-1, July 19, 2024 | DC-1221-22-0243-W-1 | NP |
919 | https://www.mspb.gov/decisions/nonprecedential/Alguard_WendySF-1221-20-0275-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WENDY ALGUARD,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-1221-20-0275-W-1
DATE: July 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Wendy Alguard , Yakima, Washington, pro se.
Lori A. Ittner , Washington, D.C., for the agency.
Sandy S. Francois , Kenner, Louisiana, 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 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).
REVERSE 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
On February 21, 2020, the appellant filed three separate appeals with the
Board, including the instant appeal. Initial Appeal File (IAF), Tab 1; Alguard v.
Department of Agriculture , MSPB Docket No. SF-20-0752-0274-I-1, Initial
Appeal File (0274 IAF), Tab 1; Alguard v. Department of Agriculture , MSPB
Docket No. SF-20-1221-0270-W-1, Initial Appeal File (0270 IAF), Tab 1.2 Here,
the appellant alleged that, in 2016, the agency failed to select her for a position
for which she had applied because she had filed a “complaint regarding
reprocessing of moldy applesauce at a company where [she] was assigned.” IAF,
Tab 9 at 5. With her initial appeal form, the appellant provided two letters from
the Office of Special Counsel (OSC) dated December 19, 2019, and February 20,
2020. IAF, Tab 1 at 7-9. The letters indicated that, in 2016, the appellant had
filed an OSC complaint involving, among other things, her disclosure of
“potentially deadly (moldy) applesauce” and her 2016 nonselection. Id. at 7.
OSC indicated that it was closing its investigation into her allegations, and it
provided the appellant with her Board appeal rights. Id. at 8-9.
To establish jurisdiction in a typical IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 (WPEA),3 an appellant must show by
2 In her other Board appeals, the appellant (1) challenged her 2011 removal from the
agency, 0274 IAF, Tab 1 at 3, 5, 7, Tab 7 at 5, and (2) alleged that the agency had
retaliated against her for filing complaints with the agency’s Office of the Inspector
General, 0270 IAF, Tab 1 at 3, 5. The former appeal was dismissed on the basis of res
judicata, 0274 IAF, Tab 21, Initial Decision at 1-2, 4 (Apr. 13, 2020), and the latter
appeal is currently pending in the Western Regional Office.
3 Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds
on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation
v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 5 (2015). Under the WPEA,
the date of the purported retaliation, and not the disclosure, is dispositive in
determining whether pre-WPEA or post -WPEA standards apply. See Hooker v.
Department of Veterans Affairs , 120 M.S.P.R. 629, ¶¶ 13, 15 (2014). Here, because the
alleged retaliation occurred in 2016, after the effective date of the WPEA, the WPEA2
preponderant evidence4 that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has
found that, in the context of an IRA appeal, a nonfrivolous allegation is an
allegation of “sufficient factual matter, accepted as true, to state a claim that is
plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1364, 1367 (Fed. Cir. 2020). Any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of affording the appellant a hearing . Drake v. Agency for International
Development, 103 M.S.P.R. 524, ¶ 11 (2006).
Here, in the initial decision, the administrative judge found that the
appellant had made a nonfrivolous allegation that, in 2011, she made a protected
disclosure described under 5 U.S.C. § 2302(b)(8)(A). IAF, Tab 16, Initial
Decision (ID) at 5. She also found that the appellant had made a nonfrivolous
allegation of a personnel action under 5 U.S.C. § 2302(a), i.e., that, in 2016, the
agency had failed to select her for a position for which she had applied. ID
at 5-6. The administrative judge also concluded that the appellant had exhausted
her administrative remedies before OSC regarding these claims. Id. She found,
applies to this appeal. The relevant holdings of the pre-WPEA case law that we have
cited herein have not been affected by the WPEA.
4 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
however, that the appellant had failed to establish Board jurisdiction because she
had failed to make a nonfrivolous allegation that her protected disclosure had
contributed to her nonselection. ID at 5-7. In so finding, the administrative
judge reasoned that, although the record showed that the selecting official was
aware of the appellant’s protected disclosure, because the appellant’s
nonselection had occurred 5 years after the same, the appellant had failed to
satisfy the knowledge/timing test. ID at 6-7. The administrative judge also
implicitly concluded that the appellant’s nonselection was precipitated by factors
other than her disclosure insofar as she stated that the agency’s documentary
evidence evinced that the appellant “was on the non -competitive certificate, while
the selectee was on the competitive certificate for current employees,” ID at 7,
and that the appellant had been “positively recognized for making the disclosure,”
ID at 7 n.6.
For the following reasons, we find that the administrative judge
erroneously applied the nonfrivolous allegation standard regarding the
contributing factor criterion, we find jurisdiction, and we remand the appeal for
adjudication of the merits.
To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, an appellant only need raise a nonfrivolous allegation that the fact or
the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 13 (2016). Although one way to satisfy this criterion is the
knowledge/timing test, see generally 5 U.S.C. § 1221(e); Mastrullo v. Department
of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015), the Board has found that, if an
appellant fails to satisfy this 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 retaliate4
against the appellant, e.g., Dorney v. Department of the Army , 117 M.S.P.R. 480,
¶ 15 (2012).
Here, the appellant alleged that the agency failed to select her because of a
“complaint regarding reprocessing of moldy applesauce at a company where [she]
was assigned.” IAF, Tab 9 at 5. She also alleged that “[t]he [a]gency did not
follow proper procedure and report the potentially deadly applesauce to the Food
and Drug Administration.” Id. We considered these allegations in conjunction
with the appellant’s filings in her other Board appeals filed on February 21, 2020,
and, in so doing, we find that she satisfied the contributing factor jurisdictional
criterion. See Hessami, 979 F.3d at 1369 n.5 (explaining that, in determining
whether an appellant has made a nonfrivolous allegation in an IRA appeal, the
Board may consider matters incorporated by reference, matters integral to the
appellant’s claim, and matters of public record).
In a simultaneously filed Board appeal, the appellant averred that, while
working for the agency in 2011, she reported to the U.S. Food and Drug
Administration (FDA) the unsafe and unlawful actions of a private company
involving the reprocessing of moldy applesauce, which prompted the FDA to take
immediate action against the company. 0274 IAF, Tab 1 at 5. She explained that
she had previously alerted her supervisor to these safety issues “from 2009
through early 2011” but that neither he nor agency management had taken any
action to protect the safety of the public. Id. The appellant explained that her
disclosure had resulted in the cancellation of a lucrative contract for the agency.
Id. Here, the appellant alleged that her supervisor in 2011 was the same agency
official that failed to select her in 2016. IAF, Tab 1 at 5.
Thus, the appellant has made a nonfrivolous allegation that her former
supervisor, the selecting official, harbored a retaliatory motive against her
because of her disclosure. See Powers v. Department of the Navy , 69 M.S.P.R.
150, 156 (1995) (stating that, if an appellant fails to satisfy the knowledge/timing
test, the Board shall, consistent with the intent of Congress, consider evidence5
such as whether the individuals that took the personnel action harbored retaliatory
motive). Moreover, she has made a nonfrivolous allegation that the agency may
have been motivated to retaliate against her insofar as her disclosure allegedly
resulted in a loss of agency revenue. See Dorney, 117 M.S.P.R. 480, ¶¶ 11-12
(explaining that, insofar as the party before the Board is the agency, not its
individual officials, a lack of actual knowledge by a single official is not
dispositive). To the extent the administrative judge relied on the agency’s
characterization of its documentary evidence to find that the appellant’s
nonselection was precipitated by factors other than her disclosure, ID at 7 & n.6,
her finding was erroneous, see Hessami, 979 F.3d at 1369 (cautioning that the
Board many not deny the appellant a right to a hearing by “crediting the agency’s
interpretation of the evidence as to . . . whether the disclosures were a
contributing factor to an adverse personnel action”).
Accordingly, we find that the appellant made a nonfrivolous allegation that
her protected disclosure contributed to her nonselection and, therefore, is entitled
to her requested hearing and a decision on the merits of her appeal. IAF, Tab 9
at 5; see Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
Prior to conducting a hearing, the administrative judge shall afford the parties a
reasonable opportunity to complete discovery and order the parties to submit any
other evidence that she deems necessary to adjudicate the merits of this appeal.
Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 14 (2016). 6
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.7 | Alguard_WendySF-1221-20-0275-W-1__Remand_Order.pdf | 2024-07-18 | WENDY ALGUARD v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-1221-20-0275-W-1, July 18, 2024 | SF-1221-20-0275-W-1 | NP |
920 | https://www.mspb.gov/decisions/nonprecedential/Aga_Sori_A_DC-0432-23-0111-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SORI ASSEFA AGA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0432-23-0111-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sori Assefa Aga , Baltimore, Maryland, pro se.
Josh Hildreth , 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
sustained his removal for unacceptable performance under chapter 43. On
petition for review, the appellant argues, among other things, that his removal was
the result of equal employment opportunity retaliation, and the administrative
judge limited his access to data that would have established pretext 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).
discriminatory motive.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).
¶2The appellant states that the administrative judge limited his access to the
“data” because his request was untimely, which was caused by his unfamiliarity
with Board procedures. Petition for Review (PFR) File, Tab 1 at 3, Tab 2 at 6.
Administrative judges have broad discretion in ruling on discovery matters, and,
absent a showing of abuse of discretion, the Board will not find reversible error.
5 C.F.R. § 1201.41(b)(4); see Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶ 7 (2010). We find no reversible error here. As the appellant
admits, his request was untimely, and he has presented no compelling reason for
2 The deadline for the appellant to file a petition for review of the initial decision was
May 2, 2023. Initial Appeal File, Tab 25, Initial Decision at 19. The appellant filed a
petition for review on May 2, 2023, and then, on May 3, 2023, at approximately
1:30 a.m. Eastern Time, the appellant filed a Supplement to his Petition for Review.
Petition for Review (PFR) File, Tabs 1-2. The appellant later filed a Motion to Waive
the Time Limit for the supplemental filing, explaining that, while filing his petition for
review, he experienced technical difficulties with e-Appeal. PFR File, Tab 4 at 4.
Because the appellant has provided an explanation for the minimal delay, and the
appellant’s supplemental filing merely expounds on the arguments he made in his
timely filed petition for review, we have considered the appellant’s supplemental filing.
PFR File, Tab 2.2
his delay in requesting the data. PFR File, Tab 1 at 3, Tab 2 at 6. Furthermore,
the appellant has not explained with specificity the data that he requested, or how
this data would have impacted the outcome of this matter. PFR File, Tab 1 at 3,
Tab 2 at 4-7. Therefore, we find that there is no evidence that the administrative
judge abused his discretion.
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 | Aga_Sori_A_DC-0432-23-0111-I-1__Final_Order.pdf | 2024-07-18 | SORI ASSEFA AGA v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0432-23-0111-I-1, July 18, 2024 | DC-0432-23-0111-I-1 | NP |
921 | https://www.mspb.gov/decisions/nonprecedential/Guzman_JorgeSF-0752-15-0170-X-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JORGE GUZMAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-15-0170-X-1
DATE: July 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
James P Walsh , Long Beach, California, for the appellant.
Thomas Schramm , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kener, Member
ORDER
¶1On January 6, 2023, the Board issued an Order denying the agency’s
petition for review of the administrative judge’s August 3, 2018 compliance
initial decision. Guzman v. Department of Homeland Security , MSPB Docket
No. SF-0752-15-0170-C-1, Order (January 6, 2023); Guzman v. Department of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Homeland Security , MSPB Docket No. SF-0752-15-0170-C-1, Compliance File
(CF), Tab 21, Compliance Initial Decision (CID). On August 16, 2023, the Clerk
of the Board issued an order requesting that the agency submit additional
evidence and explanation regarding certain questions. Guzman v. Department of
Homeland Security , MSPB Docket No. SF-0752-15-0170-X-1, Compliance
Referral File (CRF), Tab 6. In addition, on March 15, 2024, the appellant filed a
Motion to Hold Agency in Contempt and for Show Cause Order. CRF, Tab 13.
For the reasons set forth below, we deny the appellant’s motion, find the agency
partially compliant, but require additional information from the agency on several
issues to determine whether it has met its remaining compliance obligations.
BACKGROUND
¶2On September 29, 2017, the administrative judge issued an initial decision
granting the appellant’s request for corrective action, ordering the agency to
reverse the appellant’s removal, retroactively restore him to duty, pay the
appellant the appropriate amount of back pay, with interest, and adjust benefits
with appropriate credits and deductions. Guzman v. Department of Homeland
Security, MSPB Docket No. SF-0752-15-0170-I-2, Initial Decision (September
29, 2017). Neither party filed a petition for review, and the initial decision
became the final decision of the Board.
¶3On December 13, 2017, the appellant filed a petition for enforcement,
alleging that he had neither been reinstated to duty nor received his backpay but,
instead, had received an email from the agency stating that he must be
mandatorily retired due to his age as of November 21, 2014. CF, Tab 1 at 4-5.
On August 3, 2018, the administrative judge issued a compliance initial decision
granting the petition for enforcement and ordering the agency to restore the
appellant to duty, provide him notice of mandatory retirement, calculate the
appropriate back pay with interest, and comply with all other aspects of the
September 29, 2017 Order. CID at 8. 2
¶4The agency timely filed a petition for review of the compliance initial
decision on October 9, 2018. Compliance Petition for Review (CPFR) File, Tab
5. On January 6, 2023, the Board issued an Order denying the agency’s petition
for review, affirmed the compliance initial decision, and modified the compliance
initial decision to set forth additional precedent and clarify the agency’s
obligation to provide the appellant with status quo ante relief. CPFR, Tab 10 at 2.
Specifically, the Board directed the agency to take the following actions:
(1) cancel the November 21, 2014 retirement; (2) provide the appellant with the
appropriate amount of back pay, with interest, and adjust his benefits with
appropriate credits and deductions, for the back pay period of November 21,
2014, through July 31, 2019; and (3) process his mandatory retirement, effective
July 31, 2019. Id. at 10.
¶5On June 26, 2023, the agency submitted a “Narrative Statement of
Compliance” with the Board’s January 6, 2023 Order. CRF, Tab 4. The appellant
responded on July 16, 2023, challenging the agency’s assertions of compliance on
multiple grounds. CRF, Tab 5.
¶6On August 16, 2023, the Office of the Clerk of the Board issued an order
directing the agency to submit additional evidence addressing:
(1) Whether the agency utilized the correct pay scale in calculating
back pay;
(2) Whether the agency utilized the correct interest calculations
under the Back Pay Act. The agency’s response must contain pay period-
by-pay period printouts showing the interest rate applied and the
compounded interest accrual;
(3) Whether the agency previously paid the appellant a lump sum for
annual leave at the time he was originally removed, and how this sum was
calculated; 3
(4) Whether, if the agency previously paid out the appellant’s annual
leave in a lump sum, the agency erroneously deducted that amount a second
time as part of the current back pay calculations;
(5) Whether the current back pay calculations include payment for
the annual leave the appellant would have accrued during the back pay
period, and how this amount was calculated;
(6) Whether and how the sick leave the appellant would have accrued
during the back pay period has been calculated and accounted for,
including whether it was or should have been reported to the Office of
Personnel Management (OPM) as a potential factor adjusting the
appellant’s annuity;
(7) Whether the agency made its Thrift Savings Plan (TSP) basic and
matching contributions to the TSP Fund, and how such amounts were
calculated, see, e.g., 5 C.F.R. §§ 550.805(h), 1605.13;
(8) Whether the agency provided to the TSP Fund amounts the
appellant designated as retirement withholding, and how such amounts
were calculated, see, e.g., 5 C.F.R. §§ 550.805(h), 1605.13;
(9) Whether the TSP Fund received the amounts discussed in (7) and
(8) and certified that it applied appropriate breakage;
(10) Whether the appellant is entitled to any retirement contributions
separate from TSP, and how those contributions were calculated and
accounted for;
(11) A detailed accounting of how Healthcare Insurance Tax or
Medicare Tax was calculated;
(12) A detailed accounting of the calculations for Federal and state
income tax withheld; and
(13) Whether the appellant’s revised retirement date, salary
information, sick leave accrued during the back pay period, and any other4
pertinent information have been reported to OPM so as to effect any
required adjustments to his annuity.
CRF, Tab 6 at 2-3.
¶7Following this Order, both parties filed submissions. CRF, Tabs 9, 12, 13.
On March 15, 2024, the appellant filed a motion to show cause and hold the
agency in contempt, contending that the agency had intentionally violated the
Board’s Orders and improperly issued back pay to the appellant “prior to any
decision by the Board.” CRF, Tab 13 at 15-20. The agency filed a response to the
motion on April 3, 2024, and the appellant filed a reply on April 15, 2024. For the
reasons set forth below, we find the agency in partial compliance with the
September 29, 2017 decision and deny the appellant’s motion for an order to
show cause.
ANALYSIS
¶8When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden of proving its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).
Backpay Calculation
¶9The August 16, 2023 Order directed the agency to submit evidence
regarding whether it used the correct pay scales to calculate the appellant’s back
pay. CRF, Tab 6 at 2. The agency asserts that it used the correct pay scales for5
Law Enforcement Officers using the Locality Pay Tables available on the OPM
website. CRF, Tab 9 at 6-7, 17. In Exhibit C to the Narrative Response, the
agency provided a table breaking down the appellant’s wages by pay period to
arrive at a gross backpay amount of $759,010. Id. at 34-44.
¶10In his response, the appellant does not contest that the agency used the
correct pay scales. CRF, Tab 12 at 36-37, 42. However, the appellant contends
that the correct amount of back pay wages due is $760,264.28. Id. at 37. He
asserts that the agency wrongly calculated the wages for 2014 “due to LEAP [Law
Enforcement Availability Pay] wages deducted from the biweekly pay cap,”
which resulted in an overall deficit of $752.80. Id. at 42; see also CRF, Tab 9 at
34. The agency has not addressed this contention. Accordingly, the agency must
explain why the LEAP wages of $752.80 were deducted from the 2014 back pay.
“Gross-up”
¶11The appellant also argues that he is entitled to a “gross-up,” or “tax
consequences adjustment,” of $979,500.67 for federal taxes and $189,644.97 for
state taxes. CRF, Tab 12 at 46. However, the Board does not have the authority
to award the appellant compensation for any increase in his tax liability. See
Holtgrewe v. Federal Deposit Insurance Corporation , 65 M.S.P.R. 137, 140
(1994) (citing Harris v. Department of Agriculture , 53 M.S.P.R 78, 82 (1992),
aff’d, 988 F.2d 130 (Fed. Cir. 1993) (Table) (Board lacks the authority to order
any remedy for the tax consequences of a back pay award)). Accordingly, we
reject this claim of noncompliance and find that the agency is not required (or
permitted) to adjust the back pay amount to relieve the appellant of his tax
burden.
Interest Calculation
¶12The August 16, 2023 Order directed the agency to provide evidence that it
used the correct interest rates to calculate the amount of back pay interest. CRF,
Tab 6 at 2. The agency states that it used the OPM Interest Back Pay Calculator to6
validate the amount of interest calculated. CRF, Tab 9 at 7-8, 17-18. The agency
also produced a Back Pay Computation Summary Report, detailing the amount of
interest accrued per pay period.2 Id. at 47-66.
¶13The appellant asserts that, rather than calculating interest on the appellant’s
back pay wages alone, the agency should have aggregated interest based on other
benefits, such as his lump-sum payment for unused annual leave and retirement
benefits, in addition to his wages. CRF, Tab 12 at 26-27. The appellant also
argues that the agency should have added a 3% penalty to the interest rate used in
the OPM Interest Back Pay calculator. Id. at 26.
¶14With respect to the appellant’s first argument, the Back Pay Act and its
implementing regulations specify that interest is to be paid on back pay but not on
lump-sum payments for annual leave or retirement payments. 5 U.S.C. § 5596(b)
(2)(A) (interest is available for back pay but not for lump-sum annual leave
payments); 5 C.F.R. § 550.803 (defining “pay, allowances, and differentials” to
include “pay, leave, and other monetary employment benefits” and excluding
lump-sum payments for annual leave and retirement benefits); see also Davis v.
Department of the Interior , MSPB Docket No. AT-0752-09-0860-C-2, Order at 3
(Feb. 28, 2024) (finding the agency properly did not pay interest on a lump sum
annual leave payment). Accordingly, the agency did not err in computing interest
on the appellant’s back pay wages alone.
¶15Moreover, we do not agree that the agency must add an additional 3%
penalty to the interest rates it used. The Back Pay Act provides for interest to be
paid at the overpayment rate in the Internal Revenue Code, 26 U.S.C. § 6621(a)
(1).3 5 U.S.C. § 5596(b)(2)(B). A comparison of the overpayment rates
2 The agency asserted that the National Financial Center (NFC) performed the actual
calculations of the amount of interest due the appellant, but the agency was able to
confirm the amount was correct by generating its own back pay summary report. Id.
at 5, 18.
3 The overpayment rate consists of the Federal short-term rate plus three percentage
points. 26 U.S.C. § 6621(a)(1). 7
published by the Internal Revenue Service (as well as by OPM) and the rates used
in the agency’s Back Pay Computation Summary Report shows that the agency
used the correct interest rates. Thus, we find that the agency used the correct
method for calculating interest, but we cannot determine the correct interest
amount until we have determined the outcome of the appellant’s challenge to the
back pay calculation (supra).
Annual Leave and LEAP Payment
¶16The August 16, 2023 Order directed the agency to determine whether it had
previously paid the appellant a lump sum for unused annual leave at the time of
his original removal, whether it had erroneously deducted that amount a second
time from his back pay, and whether it had paid the appellant a lump sum for
unused annual leave during the back pay period. CRF, Tab 6 at 2. The agency
responds that it paid the appellant a lump sum of annual leave and LEAP at the
time of his separation on November 21, 2014, which consisted of $15,733.52 for
209 hours of annual leave and $922.18 for 49 hours of LEAP. CRF, Tab 9 at 9.
The agency then deducted that amount once from the appellant’s back pay
calculations, in accordance with 5 C.F.R. § 550.805(e)(iv). Id. at 9-10. The
agency also submitted evidence that it had calculated that the appellant would
have accrued 976 hours of annual leave during the back pay period, in addition to
the 209 hours from the previous annual leave amount, for a total of 1185 hours of
leave (a payment of $95,167.60) and 65 hours of LEAP (a payment of $1,227.60),
resulting in a gross lump payment of $96,395.20. Id. at 10-11. The agency
asserts that the lump sum payment “extends into 2020 and is subject to the 2020
annual pay adjustment for the Los Angeles locale.” Id. at 10-11, 20.
¶17The appellant agreed that he had accumulated 1185 hours of annual leave
but disagreed that he should have been paid at a 2020 rate for part of the lump
sum payment and contended that the agency made a similar error in calculating
the LEAP payment. CRF, Tab 12 at 22-23. Accordingly, the appellant calculated
that he was owed $94,539 as an annual leave lump-sum payment. Id. Similarly,8
the appellant contended that he was not due a 2020 LEAP payment of $1,227.60.
Id. Because the appellant contends that the agency owed him less than it paid
him, any error by the agency is in the appellant’s favor. Accordingly, we find the
agency in compliance on this point.
Sick Leave
¶18The August 16, 2023 Order directed the agency to determine whether the
sick leave the appellant would have accrued during the back pay period had been
calculated and accounted for, including whether it had been reported to OPM as a
potential factor adjusting the appellant’s annuity. CRF, Tab 6 at 3. The agency
responds that sick leave is not paid as a lump sum but would be provided to OPM
to determine whether it would affect his annuity. CRF, Tab 9 at 11.
¶19The appellant asserts that he is entitled to, and should receive interest on, a
lump-sum payment of unused sick leave. CRF, Tab 12 at 23-24. However, there
is nothing in the Back Pay Act that authorizes lump-sum payments for sick leave.
DeOcampo v. Department of Army , 551 Fed. App’x. 1000, 1003 (Fed. Cir. 2014)
(Table) (finding that the Back Pay Act does not authorize lump-sum payments for
sick leave). Accordingly, the appellant is not entitled to a lump-sum payment for
unused sick leave. However, the agency must provide evidence that it submitted
the appellant’s sick leave calculation to OPM, as it stated it would do.
Health Insurance Benefits
¶20The appellant contends that to restore him to the status quo ante, he is due
the health insurance premiums that the agency would have paid him had he
remained employed. RCF, Tab 12 at 24. The Back Pay Act does not authorize
the payment of retroactive health benefit premiums unless the appellant elects to
retroactively reinstate health care coverage, in which case the appellant’s
premiums will be deducted from his back pay. 5 C.F.R. § 550.805(e)(3)(iii); see
also Sowa v. Department of Veterans Affairs , 100 M.S.P.R. 5, ¶¶ 6-7 (2005)
(determining the appellant could not receive reimbursement for healthcare9
premiums under the Back Pay Act.). The appellant does not state that he has
elected to retroactively reinstate his health care coverage. Accordingly, we find
the agency in compliance on this point.
Thrift Savings Plan
¶21The Board’s Order directed the agency to explain whether it had made its
TSP basic and matching contributions to the TSP Fund and how such amounts
were calculated, whether the agency had provided the appellant’s retirement
withholdings to the TSP and how such amounts were calculated, and whether the
TSP Fund had received these amounts and certified that it applied appropriate
breakage. CRF, Tab 6 at 3.
¶22The agency reported that the National Finance Center (NFC) had calculated
TSP contributions and had determined that there had previously been an error.
RCF, Tab 9 at 11. The NFC then recalculated the appellant’s TSP contributions
and provided a TSP Fund Report, detailing contributions and breakage. Id. at 12,
22, 97-104. The TSP Fund Report appears to state that the employee contribution
equaled $45,168.68, the agency’s automatic contribution equaled $9,868.73, and
the matching contribution equaled $39,477.58, for a total of $94,514.99. Id.
at 97. Notably, the agency’s back pay summary states that the appellant’s TSP
contribution was $37,950.52. Id. at 71.
¶23The appellant calculated that the appellant’s contribution would be
$37,988.14, and the agency’s matching benefit equaled $37,988.14, for a total of
$75,976.28. Tab 12 at 46-47, 65. The appellant also noted that the agency had
listed three different amounts for the calculated wages for retirement. Id. at 48;
see also CRF, Tab 9 at 23, 44, 71. The appellant also states that the appellant
wishes to restore his $227,969 in TSP withdrawals made during separation under
5 C.F.R. § 1605.13(d). CRF, Tab 12 at 48. The agency must address the
appellant’s calculations, explain why its evidence lists three different versions of
the appellant’s wages, as well as different amounts for appellant’s TSP10
contributions, and explain whether it has enabled the restoration of the appellant’s
TSP withdrawals to his account.
Retirement Contributions Separate From TSP
¶24The Board’s Order directed the agency to explain whether the appellant
was entitled to any retirement contributions separate from TSP and how those
contributions were calculated and accounted for. CRF, Tab 6 at 3.
¶25The agency responded that it requested the responsive information from
NFC, which responded:
Retirement deductions based on total base wages@ .0130
FY 2014 $456,175.20 x .0130
FY 2017 $163,038.40 x .0130
FY 2018 $139,796.80 x.0130
RCF, Tab 9 at 13.
¶26The appellant asserted in response that these numbers were not consistent
with agency-calculated wages, omitted certain years, and provided no explanation
of how the alternative wages were calculated. RCF, Tab 12 at 25-26. We agree.
NFC is the agency’s agent, and thus, the agency is responsible for ensuring that
NFC provides a clear explanation of these calculations. See Raymond v.
Department of the Navy , 116 M.S.P.R. 223, ¶¶ 14-17 (2011) (rejecting “unsworn,
vague” Defense Financial and Accounting Services (DFAS) memo and
spreadsheet as evidence of compliance, in part because they lacked narrative
explanation of calculations); see also Tichenor v. Department of the Army , 84
M.S.P.R. 386, ¶ 8 (1999) (rejecting argument that DFAS, not the agency,
improperly withheld payment from the appellant because DFAS was the agency’s
agent).
Health Insurance Tax or Medicare Tax
¶27The Board’s Order requested a detailed accounting of how Healthcare
Insurance Tax or Medicare Tax was calculated. RCF, Tab 6 at 3. The agency11
responded that NFC stated that “Medicare wages are calculated on $200,000 x
1.45 and on wages over $200,000 deducted at 2.35%.” RCF, Tab 9 at 13. The
appellant responded that this was not a “detailed accounting.” RCF, Tab 12 at 29.
We agree. The agency must provide a detailed accounting of these taxes. See
Raymond, 116 M.S.P.R. 223, ¶¶ 14-17.
Federal and State Income Taxes
¶28The Board ordered the agency to provide a detailed accounting of the
calculations for Federal and state income taxes. RCF, Tab 6 at 3. The agency
responded that NFC had the responsive information and stated, “Federal and state
taxes were aggregated based on the number of pay periods.” RCF, Tab 9 at 14.
Again, the agency must provide a more detailed accounting of these calculations.
See Raymond, 116 M.S.P.R. 223, ¶¶ 14-17.
Reporting Information to OPM
¶29The Board’s Order also requested the agency disclose whether certain
relevant information had been reported to OPM “so as to effect any required
adjustments to his annuity.” RCF, Tab 6 at 3. The agency responded that NFC
possessed the responsive information but “did not provide the agency with
responsive information.” RCF, Tab 9 at 14. Again, the agency must disclose this
information so the appellant may determine whether he agrees with the
calculations. See Raymond, 116 M.S.P.R. 223, ¶¶ 14-17.
The Timing of the Agency’s Payment of the Back Pay
¶30In his Motion for Order to Show Cause, the appellant complains that the
agency has already attempted to pay the appellant his back pay “prior to any
decision by the Board.” CRF, Tab 13 at 20. The agency, however, is complying
with the Board’s January 6, 2023 Order, which directed the agency to provide the
appellant with the appropriate amount of back pay, with interest. CPFR, Order
at 10. The agency is not acting in bad faith by paying the appellant what it has
calculated as the appellant’s back pay. If those calculations change, the agency12
will be required to account for the difference. However, as the appellant has
apparently returned the back pay he received, the agency will need to show that it
has paid him again.
ORDER
The appellant’s Motion for Order to Show Cause is denied.
Within 30 calendar days of this Order, the agency shall submit the
evidence discussed above. Specifically, the agency must:
(1)Provide an explanation of why LEAP wages of $752.80 were
deducted from the 2014 back pay amount;
(2)Recalculate the interest due if the appellant’s back pay amount
changes based on number (1) above;
(3)With respect to the appellant’s TSP account, address the appellant’s
calculations, explain why its evidence lists three different versions of
appellant’s wages, as well as different amounts for appellant’s TSP
contributions, and explain whether it has enabled the restoration of
the appellant’s TSP withdrawals to his account.
(4)Provide a clear explanation and calculation of retirement
contributions separate from the TSP;
(5)Provide a detailed accounting of how Healthcare Insurance Tax or
Medicare Tax was calculated;
(6)Provide a detailed accounting of the calculations for Federal and
state income tax withheld;
(7)Explain whether the appellant’s revised retirement date, salary
information, sick leave accrued during the back pay period, and any
other pertinent information have been reported to OPM so as to
effect any required adjustments to his annuity.
If the agency fails to submit the required information, the Board may issue
an order to show cause why sanctions should not be imposed against the13
responsible agency official pursuant to 5 U.S.C. § 2304(e)(2)(A) and 5 C.F.R. §
1201.183(c).
The appellant shall submit any response within 21 calendar days of the
date of service of the agency’s submission. If the appellant does not respond to
the agency’s submission regarding compliance within 21 calendar days, the Board
may assume that the appellant is satisfied and dismiss the petition for
enforcement.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Guzman_JorgeSF-0752-15-0170-X-1_Order.pdf | 2024-07-18 | JORGE GUZMAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-15-0170-X-1, July 18, 2024 | SF-0752-15-0170-X-1 | NP |
922 | https://www.mspb.gov/decisions/nonprecedential/Guzman_ThomasSF-1221-20-0166-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS GUZMAN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-1221-20-0166-W-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas Guzman , Cedar City, Utah, pro se.
Julie Nelson , Golden, Colorado, for the agency.
Marcus Mitchell , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant 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 allegations2 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
2 The Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The regulation
further provides that an allegation generally will be considered nonfrivolous when,
under oath or penalty of perjury, an individual makes an allegation that: (1) is more
than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the
appeal. Id. Pro forma allegations are insufficient to meet the nonfrivolous standard.
Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶ 6 (2016 ), aff’d per curiam, 679 F.
App’x 1006 (Fed. Cir. 2017), overruled on other grounds by Cronin v. U.S. Postal
Service, 2022 MSPB 13, ¶ 20 n.11. 2
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). When evaluating the Board’s
jurisdiction over an IRA appeal alleging retaliation for protected disclosures, “the
question of whether the appellant has non-frivolously alleged protected
disclosures that contributed to a personnel action must be determined based on
whether the employee alleged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1369 (Fed. Cir. 2020).
In this case, the appellant alleged before OSC that he made protected
disclosures when:
(1)On July 25, 2018, he disclosed to his first-line supervisor that his
second-line supervisor was violating 5 C.F.R. part 338 by requiring him
to obtain a chainsaw certification (“saw card”);
(2)On September 5, 2018, he disclosed to his first-line supervisor, via text
message, that his second-line supervisor intimidated and harassed him in
violation of the agency’s anti-harassment policy by taking unofficial
punitive action against the first-line supervisor, so that she would in
turn pressure the appellant to take the saw training;
(3)On September 6, 2018, he filed a report with the agency’s Harassment
Assessment Review Team alleging intimidation, harassment, and
bullying by his first and second-line supervisors;
(4)On September 15, 2018, he informed his first-line supervisor, over the
phone, that he was feeling intimidated and harassed by his second-line
supervisor with regard to the saw card issue;
(5)On September 15, 2018, he emailed the District Ranger (his third -line
supervisor) and informed him that he was “being intimidated, harassed,
and bullied” by his first and second-line supervisor, and that he had
filed a case with the harassment reporting center; and
(6)On September 16, 2018, he disclosed to the District Ranger and the
Deputy District Ranger that his second-line supervisor was acting
outside the scope of his authority by attempting to add conditions of
employment to his position, that he was being harassed by his first and
second-line supervisors, and that his first-line supervisor had threatened
him with misconduct after he reported being harassed.3
Initial Appeal File (IAF), Tab 6 at 5-11. He further alleged before OSC that, in
retaliation for his disclosures, management harassed and intimidated him,
threatened to remove him from “off forest” work assignments, threatened to deny
leave requests, threatened to charge him with insubordination, and issued an
April 19, 2019 letter of reprimand. Id.; IAF, Tab 1 at 17. For the reasons
discussed below, we agree with the administrative judge that the appellant failed
to nonfrivolously allege that the disclosures he identified in his OSC complaint
were protected under 5 U.S.C. § 2302(b)(8).
Protected disclosures include any disclosure of information that 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). 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 these specified types of
wrongdoing. Salerno, 123 M.S.P.R. 230, ¶ 6. The test for determining whether
an employee had a reasonable belief that his disclosures revealed a type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8) is whether a disinterested observer
with knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions of the Government
evidenced such wrongdoing. Id.
We first consider the appellant’s allegation that he made protected
disclosures when he disclosed to his first-line supervisor, and later to the District
Ranger and Deputy District Ranger, that his second-line supervisor violated
5 C.F.R. part 338 by directing him to obtain a chainsaw certification. IAF, Tab 6
at 5-6, 11. In support of his claim, the appellant does not cite the regulation
itself, but instead quotes a portion of an Office of Personnel Management (OPM)
policy statement interpreting the regulation:4
1.The U.S. Office of Personnel Management (OPM)
OPM is responsible for developing and issuing minimum
qualifications standards, policies, and instructions.
. . . .
2.Agencies
Federal executive branch agencies are responsible for applying
appropriate standards in individual personnel actions and when
examining for positions under a delegated examining authority.
Information provided in OPM qualification standards generally is
not sufficiently specific to be used directly in examining for
positions or quoted in vacancy announcements. Therefore,
agencies must include in their vacancy announcements the general
or specialized experience or education required for their
positions.
IAF, Tab 6 at 6, 15.3 The appellant argues that, by directing him to obtain a saw
card, his second-line supervisor was not merely assigning duties, but rather
modifying minimum qualification standards that were already approved by the
responsible parties and listed in the vacancy announcement and position
description. Id. at 15. Hence, the appellant argues that his second-line supervisor
was acting outside the scope of his authority. Id.
We agree with the administrative judge that the appellant failed to
nonfrivolously allege that he disclosed a violation of law, rule, or regulation with
regard to the saw card instruction. The same OPM guidance the appellant relies
upon provided that an agency may develop selective factors, i.e., knowledge,
skills, abilities, or special qualifications, to supplement minimum qualification
standards. In this case, the position description states, under the heading of
Knowledge Required by the Position, Factor 1, that the Forestry Technician
(Prevention) position requires “[s]kill in the use of handtools such as axe, shovel,
pulaski and power tools including chainsaw, powered pumps, etc. to build fireline
3 OPM amended this policy statement in May 2022, while the appellant’s petition for
review was pending before the Board.
https://www.opm.gov/policy-data-oversight/classification-qualifications/general-
schedule-qualification-policies/#url=General-Policies (last visited July 17, 2024). This
amendment does not affect the outcome of this appeal.5
and extinguish burning materials, as qualified.” IAF, Tab 7 at 76. The
instruction to obtain a chainsaw certification is consistent with that selective
factor, and does not purport to modify the minimum qualification standards for
the position. Accordingly, we agree with the administrative judge that the
appellant failed to allege facts that, if proven, would show that he disclosed a
matter that a reasonable person in his position would believe evidenced a
violation of law, rule, or regulation.
The remaining alleged disclosures concern the appellant’s allegation that
his first- and second-line supervisors harassed and intimidated him.4 IAF, Tab 6
at 7-11. Specifically, he contends that their behavior was in violation of the
agency’s anti-harassment policy set forth in Forest Service Manual (FSM) 1700.
Id. at 7-8; https://www.fs.usda.gov/sites/default/files/wo-1760-amend-2017-1-
003.pdf (last visited July 17, 2024). The appellant correctly observes that the
anti-harassment policy covers non-EEO related harassment, see FSM 1700,
§ 1765.03, and he does not allege that he was harassed based on membership in a
protected class. He instead cites the prohibition against “Other Workplace
Harassment (non-EEO, including Bullying),” defined as “[a]ny form of
unwelcome, pervasive, persistent and unsolicited verbal, non-verbal, written, or
physical conduct that is objectively offensive and could alter the affected
employee’s terms and conditions of employment.” FSM 1700, § 1765.05(3); IAF,
Tab 6 at 7-8.
The appellant contends that his supervisors violated that policy by
threatening to take punitive action, such as denying leave, preventing him and his
peers from going on fire assignments, or bringing an insubordination charge, if he
did not comply with the instruction to obtain a saw card. The appellant may well
have felt that the conduct of his supervisors was unwelcome, pervasive,
persistent, and unsolicited. However, taking the appellant’s allegations as true,
4 As the appellant notes in his petition for review, he has not alleged that the instruction
to obtain a saw card was itself a violation of the anti-harassment policy. PFR File,
Tab 1 at 7. 6
he has not described conduct that a reasonable person would consider
“objectively offensive.” Accordingly, we find that he has not nonfrivolously
alleged that he disclosed a violation of law, rule, or regulation.
Nor has the appellant nonfrivolously alleged that, by reporting the alleged
harassment and intimidation, he disclosed another type of wrongdoing listed
under 5 U.S.C. § 2302(b)(8). We note that the Board has held that a supervisor’s
use of his influence to denigrate other staff members in an abusive manner and
threaten the careers of staff members with whom he disagrees may constitute an
abuse of authority. Herman v. Department of Justice , 115 M.S.P.R. 386, ¶ 11
(2011). However, the conduct the appellant claims to have disclosed does not
rise to that level of wrongdoing. Taking the appellant’s allegations as true, a
reasonable person would not view his supervisors’ efforts to enforce the saw card
instruction to be abusive, denigrating, or otherwise outside the realm of ordinary
supervisory discretion.
In sum, we agree with the administrative judge that the appellant failed to
nonfrivolously allege that the disclosures he identified in his OSC complaint were
protected under 5 U.S.C. § 2302(b)(8). Accordingly, we affirm his decision to
dismiss the appeal for lack of jurisdiction.5
5 We agree with the appellant that the administrative judge should have made a ruling
on his motion to compel. However, the appellant has not explained how the requested
discovery would have enabled him to establish jurisdiction over his appeal. See
Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981 ) (holding that an
administrative judge’s procedural error is of no legal consequence unless it is shown to
have adversely affected a party’s substantive rights .) As to the appellant’s newly
submitted evidence, he has not shown that the documents in question were previously
unavailable despite his due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (holding that, under 5 C.F.R. § 1201.115, 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). 7
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Guzman_ThomasSF-1221-20-0166-W-1__Final_Order.pdf | 2024-07-18 | THOMAS GUZMAN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-1221-20-0166-W-1, July 18, 2024 | SF-1221-20-0166-W-1 | NP |
923 | https://www.mspb.gov/decisions/nonprecedential/Vinluan_Jason_S_CH-1221-19-0201-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON S. VINLUAN,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
CH-1221-19-0201-W-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michelle Vinluan , Royal Oak, Michigan, for the appellant.
Edward V. Hartman , 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 individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s finding that the appellant failed to
nonfrivolously allege that he made a protected disclosure and address the
appellant’s other purportedly protected disclosures and activity, we AFFIRM the
initial decision.
BACKGROUND
Until his resignation in March 2017, the appellant was employed by the
agency’s Bureau of Labor Statistics (BLS) as an Economist in its National
Compensation Survey (NCS) program. Initial Appeal File (IAF), Tab 7 at 10,
Tab 17 at 4. The NCS program was charged with conducting surveys of
employee salaries, wages, and benefits. U.S. Bureau of Labor Statistics,
Employee Cost Index, https://www.bls.gov/eci/questions-and-answers.htm
(last visited July 18, 2024); see 5 C.F.R. § 1201.64 (stating that the Board may
take official notice of matters that can be verified); Graf v. Department of Labor ,
111 M.S.P.R. 444, ¶ 8 (2009) (taking official notice of information on the
agency’s official website); IAF, Tab 17 at 6.2
In the summer of 2012, BLS and the Social Security Administration (SSA)
entered into an agreement which led to the establishment of the Occupational
Requirements Survey (ORS). Gwyn R. Ferguson et al., BLS, ORS
Sample Design Evaluation (Oct. 2014), https://www.bls.gov/osmr/research-
papers/2014/pdf/st140130.pdf (last visited July 18, 2024). The purpose of ORS is
to collect occupational information relevant to SSA’s disability program. Id.
Several options were proposed on how ORS should be organized under BLS,
including one proposal in which ORS would be integrated into the NCS program
and another in which it would be left as a separate survey. Id.; IAF, Tab 15 at 23.
The appellant believed that ORS should not be integrated into the NCS
program. IAF, Tab 15 at 22-23. On July 5, 2013, the appellant raised concerns
on an agency webpage, “Your Ideas Count at BLS!,” that the integration of ORS
into the NCS program would degrade the quality and quantity of data collected
for both surveys due to the NCS program’s insufficient staffing, and that the
integration would lead to greater staffing costs . Id. at 21-24. He also filed a
grievance in June 2016, regarding the agency’s decision not to select him for a
promotion. Id. at 114-18.
In September 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC). IAF, Tab 14 at 8. In his complaint and other
correspondence with OSC the appellant alleged that, in retaliation for his
disclosures about the integration as well as his grievance, the agency declined to
promote him, subjected him to a hostile work environment, and did not rehire him
after he resigned. IAF, Tab 1 at 10, Tab 15 at 7, Tab 17 at 16-17.
The appellant filed this IRA appeal after OSC terminated its investigation
into his complaint. IAF, Tab 1 at 10. The administrative judge informed the
appellant of his burden to establish the Board’s jurisdiction over his IRA appeal.
IAF, Tab 3. In his initial decision, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 24, Initial Decision (ID). Specifically, he3
found that the appellant failed to nonfrivolously allege that his disclosures were
protected. ID at 10-12.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition, and the appellant has
filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that he exhausted his administrative remedies before OSC
and nonfrivolously allege that (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Linder v. Department
of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). A nonfrivolous allegation is an assertion
that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).
The appellant proved exhaustion of his OSC remedies by preponderant evidence.
In an IRA appeal, the Board may consider only matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). An appellant may demonstrate exhaustion through
his initial OSC complaint, evidence that he amended the original complaint,
including but not limited to OSC’s preliminary determination letter and other
letters from OSC referencing any amended allegations, and the appellant’s written
responses to OSC referencing the amended allegations. Id.
Although the administrative judge acknowledged the appellant filed a
complaint with OSC, ID at 2-3, the administrative judge failed to make explicit
findings on exhaustion. Here, the appellant’s OSC complaint is not in the record.
However, he provided a letter from OSC, reflecting that he had filed a complaint
and OSC had terminated its inquiry and advising him that he could file an appeal4
with the Board. IAF, Tab 1 at 10. He also submitted a declaration under penalty
of perjury stating he filed an OSC complaint. IAF, Tab 14 at 3, 8. He further
provided documentation he submitted to OSC, including declarations, email
correspondence, and “a 700+ page evidentiary package.” IAF, Tab 14 at 8-9,
Tabs 15-17.
The appellant’s evidentiary package included copies of what he numbered
as 162 written communications. Of those, he identified approximately 54,
including his grievance, which he alleged constituted his protected disclosures
and activities.2 IAF, Tab 15 at 4-16, 18-261. The first of the appellant’s
alleged protected disclosures occurred on July 5, 2013, and the last occurred
on August 3, 2018. Id. The appellant’s grievance was filed on or about
June 27, 2016. Id. at 10, 115-17. Because the appellant provided copies of these
alleged protected disclosures and activities to OSC, we find that he established
exhaustion.
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that he made a protected disclosure.
Next, we turn to the issue of whether the appellant made a nonfrivolous
allegation of a protected disclosure or protected activity over which the Board has
IRA jurisdiction. See Linder, 122 M.S.P.R. 14, ¶ 6. A protected disclosure is a
disclosure of information that an appellant 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. Id., ¶ 12. The proper test for determining whether an employee had a
2 On review, the appellant asserts that he also made many oral disclosures. PFR File,
Tab 1 at 4. It does not appear that the appellant raised any oral disclosures below, and
the administrative judge did not address them. IAF, Tab 14 at 5. In any event, the
appellant failed to provide any evidence that he exhausted his OSC remedy as to these
alleged oral disclosures, and therefore we decline to address them. IAF, Tab 1 at 10,
Tab 15 at 6-16, Tab 17 at 4-5; See Coufal v. Department of Justice , 98 M.S.P.R. 31,
¶ 17 & n.1 (2004) (declining to consider whether an appellant nonfrivolously alleged
that she made a protected disclosure because she did not exhaust the disclosure before
OSC).5
reasonable belief that his disclosures were protected is whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions evidenced a violation
of law, rule, or regulation, or one of the other conditions set forth in 5 U.S.C. §
2302(b)(8). Id.
The appellant failed to nonfrivolously allege that his communications
concerning the integration between ORS and the NCS program
were protected.
Of the 54 written communications identified by the appellant as
constituting his disclosures, only 10 of them contain statements he made to others
about the proposed integration of ORS into the NCS program.3 IAF, Tab 15
at 18-39, 42-100, 106-11, 131-37. The first was his July 5, 2013 post on Your
Ideas Count at BLS!, in which he asserted that the integration of ORS into the
NCS program would, among other things, do the following: (1) “likely increase”
staffing costs; (2) negatively impact the quantity and quality of the data that the
NCS program collected, including as to ORS; and (3) negatively impact the
program’s product deliverables and nimbleness. Id. at 21-24. Four of the
appellant’s other communications regarding the proposed integration essentially
did nothing more than refer to or quote, in whole or in part, this initial post. Id.
at 18-19, 44-71. Similarly, the appellant’s five remaining communications
regarding the proposed integration merely reiterated, at most, points he raised in
his initial post. Id. at 42-43, 71-100, 106-11, 131-37. Accordingly, these nine
other communications about the proposed integration would only be protected to
the extent that the appellant’s initial post was protected. See Schneider v.
Department of Homeland Security , 98 M.S.P.R. 377, ¶ 15 (2005) (finding that the
3 The appellant labeled these communications as disclosures D2-D3, D9, D11-D15,
D26, and D67. IAF, Tab 15 at 18-39, 42-100, 106-11, 131-37. Although the appellant
identified other statements as protected disclosures concerning the integration, the
documents he provided did not support his claim. The record does not reflect that he
made the written statement he identified as disclosure D83 to anyone. Id. at 157-58.
Further, the emails he identified as D87 and D134 do not contain any disclosures.
Id. at 158-60, 213-15.6
appellant’s disclosures remained protected at each iteration). Thus, although the
administrative judge failed to address the nature of these subsequent disclosures
or whether they were protected, that error does not establish a basis for granting
the petition for review. See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
The administrative judge found that the appellant’s July 5, 2013 disclosure,
and by implication his reiterations of this disclosure, was not protected. ID at 10-
12. The appellant asserted below that his disclosures evidenced that the
integration of ORS into the NCS program would constitute gross mismanagement,
a gross waste of funds, and an abuse of authority. IAF, Tab 14 at 5, Tab 17 at 6.
He did not argue below or on review that he disclosed a violation of any law,
rule, or regulation, or a substantial and specific danger to public health or safety,
and we see no reason to find that such wrongdoing is implicated.
On review, the appellant reasserts that he disclosed gross mismanagement,
a gross waste of funds, and an abuse of authority. PFR File, Tab 1 at 4, 6-7.
We are not persuaded. The whistleblower protection statutes are not a weapon in
arguments over policy. Webb v. Department of the Interior , 122 M.S.P.R. 248,
¶ 8 (2015). 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).
5 U.S.C. § 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8. The Board has found a
disclosure to be a mere policy dispute when, for example, an appellant disagreed
with an agency’s proposal to divide one agency unit into three new, smaller
subunits. Id., ¶¶ 2, 7-8. Another example of a classic policy dispute is an
appellant’s disagreement with an agency’s decision to close an office, allegedly
without justification. Downing v. Department of Labor , 98 M.S.P.R. 64, ¶ 2, 14
(2004), aff’d per curiam , 162 F. App’x 993 (Fed. Cir. 2006). The appellant’s
disclosures pertaining to the integration were mere policy disagreements with the7
agency’s proposal for integration of ORS into the NCS program. Contrary to the
appellant’s arguments on review, we are not persuaded that the appellant
nonfrivolously alleged that a reasonable person in his position would believe he
disclosed a gross waste of funds, gross mismanagement, or an abuse of authority.
A gross waste of funds is a more than debatable expenditure that is
significantly out of proportion to the benefit reasonably expected to accrue to the
Government. Downing, 98 M.S.P.R. 64, ¶ 11. As the administrative judge
observed, individuals within the agency expressed differing views as to the costs
and benefits of the integration. ID at 11; IAF, Tab 15 at 24-28. For example, in
response to the appellant’s July 5, 2013 posting, one individual expressed the
view that ORS should be integrated into the NCS program because it was a “small
survey” with “a potentially big source of funding” from SSA. IAF, Tab 15 at 26.
Another individual similarly stated that the NCS program had lost significant
funding and the funding for ORS could help the NCS program grow. Id. at 27.
Eight months later, in March 2014, coworkers were still discussing and debating
the options. For example, one coworker told the appellant “I can see both sides,”
while another acknowledged “[t]here are plenty of anecdotes to support both
sides, so they cancel each other out.” IAF, Tab 16 at 296, 318. Thus, we agree
with the administrative judge that the appellant’s disclosures did not evidence a
gross waste of funds because they concerned management decisions about
expenditures that were debatable.
On review, the appellant repeats his statement in his July 5, 2013 posting
that “the myriad of costs of tying ORS to the NCS and the resulting inefficiencies
are far too great to [the] [NCS] Program, as a whole, and [its] future success.”
PFR File, Tab 1 at 4; IAF, Tab 15 at 21. To the extent the appellant is arguing
that this statement evidenced a gross waste of funds, we disagree. In Downing,
the Board considered a similar disclosure by an appellant opposing the agency’s
closure of one of its BLS offices. Downing, 98 M.S.P.R. 64, ¶ 9. It observed that
the appellant’s assertion that the closure was expensive and thus unwarranted was8
insufficient because the record contained no evidence of agency expenditures.
Id., ¶ 11. Similarly, the appellant’s posting generally refers to the costs of the
integration, but provides no information suggesting, in financial terms, what these
costs might be. IAF, Tab 15 at 21-24. In fact, he disclaimed any specific
knowledge of the costs, stating as to staffing and cost issues, “I do not claim to be
an expert on such matters (far from it) or privy to the details involved (again, far
from it).” Id. at 21. We agree with the administrative judge that the appellant’s
disclosure, even if true, did not evidence a gross waste of funds.
Gross mismanagement means a management action or inaction that creates
a substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Swanson v. General Services Administration ,
110 M.S.P.R. 278, ¶ 11 (2008). A disclosure of gross mismanagement excludes
management decisions that are merely debatable. Webb, 122 M.S.P.R. 248, ¶ 10
n.3. The appellant indicated in his July 2013 posting that the integration would
lead to poor data quality on both ORS and the NCS program’s other surveys.
IAF, Tab 15 at 22-23. The basis of his concern was that survey respondents
would not want to spend the additional time necessary to answer questions for the
ORS survey when they were already being asked to answer questions for the NCS
program’s other surveys. Id. The administrative judge found, in essence, that the
appellant did not reasonably believe that his disclosure evidenced a substantial
risk of significant adverse impact on the agency’s mission. ID at 11. We agree.
In Downing, the Board found that an appellant failed to meet the
nonfrivolous pleading standard as to a disclosure that the agency closed an office
without authority and without a cost-benefit analysis, and that closing the office
would interfere with the employees’ job of collecting data and would make it
more difficult to perform the agency’s overall mission. 98 M.S.P.R. 64, ¶ 10.
The Board reasoned that these assertions were not nonfrivolous allegations of
gross mismanagement because they did not demonstrate a management action or
inaction that created a substantial risk of significant adverse impact upon the9
agency’s ability to accomplish its mission. Id. Instead, they are no more than the
appellant’s subjective disagreement with the agency’s decision. Id.
The appellant’s disclosures here were similar to those at issue in Downing.
He speculated that, “If it takes X amount of time to collect information and
respondents are only willing to give a lesser amount of time,” the person
conducting the survey must abandon “the ‘ideal’ approach—not asking questions
or probing to the extent [he] would under ‘ideal’ situations,” resulting in “cutting
corners.” IAF, Tab 15 at 22. According to the appellant, such cutting corners
would result in “assumptions/judgments” that would cause “data quality . . . [to]
suffer.” Id. As in Downing, the appellant’s disclosures do not demonstrate a
substantial risk of significant adverse impact. Rather, he asserts the agency’s
actions might result in poorer survey data.
On review, the appellant disputes the administrative judge’s
characterization of his July 2013 posting as his “personal belief,” asserting the
posting “contained facts” about the negative effects of merging ORS into the NCS
survey. PFR File, Tab 1 at 4; ID at 12. Regardless of any factual basis for the
appellant’s beliefs, nothing in the appellant’s disclosures suggest that the
integration would jeopardize the agency’s mission. In any event, as discussed
above, the effects of the integration were debatable.
The appellant also challenges the administrative judge’s finding that his
disclosures contained his personal belief by arguing that others agreed with him.
For example, he asserts that 17 of his colleagues selected the option to “agree”
with his posting, while agency management asked him to delete the post and told
him it “would impact his future movement within the government.” PFR File,
Tab 1 at 5-8; IAF, Tab 15 at 21. A showing that an employee’s belief was shared
by other similarly situated employees “may be of some relevance” in determining
whether his belief was reasonable.” Lachance v. White , 174 F.3d 1378, 1381
(Fed. Cir. 1999). Here, the appellant’s colleagues appear to have agreed with him
that the agency’s actions might result in poorer survey data. See id.10
However, because the statements in the appellant’s posting did not evidence
wrongdoing rising to the level of gross mismanagement, the agreement or
disagreement of others with his posting does not support his claim that he made a
protected disclosure.4
An abuse of authority occurs when there is an arbitrary or capricious
exercise of power by a Federal official or employee that adversely affects the
rights of any person or results in personal gain or advantage to himself or
preferred other persons. Pasley v. Department of the Treasury , 109 M.S.P.R.
105, ¶ 18 (2008). There is no de minimis standard for abuse of authority as a
basis of a protected disclosure. Id.
The appellant did not claim below that anyone involved in the integration
was attempting to provide a gain or advantage for himself or others. IAF, Tab 15
at 21-24. At most, he alleged that there was a risk of BLS delivering to SSA
something less than “the best product possible in a timely manner.” IAF, Tab 15
at 23. Lacking from both his July 2013 posting and his petition for review is a
claim that particular individuals’ rights were affected or that the integration was
for personal gain. Id.; PFR File, Tab 1 at 6-7. Thus, he did not disclose an abuse
of authority. See Downing, 98 M.S.P.R. 64, ¶¶ 2, 12 (declining to find an
appellant reasonably believed that his disclosure that a reorganization would
disadvantage certain employees as to promotions and reassignments was a
disclosure of an abuse of authority).
The appellant also indicates on review that as a part of the proposed
integration, field economists were instructed to simplify job descriptions to
answer fewer ORS elements or indicate that information was “Not Determinable,”
4 The appellant also points out on review that an OSC attorney advised him via email
that his evidence was “sufficient to assume that [OSC] could meet the definition of
gross mismanagement.” PFR File, Tab 1 at 8-9; IAF, Tab 17 at 16. An IRA appeal is a
de novo action, and the Board must therefore rely on its independent analysis of the
parties’ evidence, and not on OSC’s characterizations of the appellant’s allegations,
which are not binding on the Board. Cassidy v. Department of Justice , 118 M.S.P.R.
74, ¶ 16 (2012). Thus, to the extent the appellant is asserting that OSC deemed his
disclosures to be protected, we are not bound by any such finding. 11
which he argues constitutes gross mismanagement. PFR File, Tab 1 at 6.
He asserts that BLS wrongfully continued to accept payment from SSA for the
collection of information that was hindered or not collected at all. Id. at 6-7.
He raised similar claims to OSC. IAF, Tab 17 at 7-8. However, neither on
review nor in his statements to OSC did he claim he had disclosed this
information to the agency. In fact, he states on review that these allegations of
wrongdoing “did not go against his initial posting.” PFR File, Tab 1 at 7.
Thus, he failed to prove he made disclosures of this alleged wrongdoing.
See 5 U.S.C. § 2302(a)(2)(D) (defining a disclosure as “a formal or information
communication or transmission”).
The appellant’s remaining purported disclosures are not a basis for
granting the petition for review.
Below, the appellant additionally referred to communications regarding
matters other than the integration. IAF, Tab 15. Although the administrative
judge failed to address these communications, we find that error to be harmless
because the appellant failed to nonfrivolously allege that they are protected.
See Panter, 22 M.S.P.R. at 282.
Of the remaining written communications identified by the appellant as
constituting his disclosures, a number are emails in which he was merely the
recipient, rather the sender, of information.5 IAF, Tab 15 at 40-41, 111-12,
114-15, 117-20, 124-31, 145-48, 151-57. Because the appellant does not argue
that he was retaliated against for another individual’s protected disclosure, we
need not consider these communications further. Cf. Duda v. Department of
Veterans Affairs , 51 M.S.P.R. 444, 446 (1991) (finding that it is whistleblower
reprisal for an agency to take a personnel action against one person because of his
relationship with another employee who has made a protected disclosure).
5 The appellant labeled these communications as disclosures D6-7, D30, D37, D39-40,
D44, D47-50, D70, D75, D80, and D82. IAF, Tab 15 at 40-42, 111-12, 114-15, 117-20,
124-31, 145-48, 151-57. 12
Additionally, we note that the agency informed the appellant on
July 9, 2018, at 9:15 a.m. that it had not selected him for a position to which he
had applied. IAF, Tab 16 at 239-40. This was the last personnel action identified
by the appellant. IAF, Tab 15 at 7-8, 16. He then purportedly made a disclosure
later that day, as well as on July 27 and August 3, 2018.6 Id. at 16, 217-61.
Because these three purported disclosures followed the last alleged personnel
action taken against the appellant, they could not have contributed to any
personnel action at issue in this appeal, and we need not consider them further.
See El v. Department of Commerce , 123 M.S.P.R. 76, ¶¶ 9-10 (2015)
(observing that an appellant could not prove contributing factor when the alleged
personnel action predated his disclosure), aff’d per curiam , 663 F. App’x 921
(Fed. Cir. 2016).
After reviewing the approximately 22 remaining written communications
identified by the appellant as disclosures, we see nothing therein indicating that
he nonfrivolously alleged they were protected.7 IAF, Tab 15 at 10005, 112-14,
120-24, 137-45, 148-51, 185-213, 215-17. Notably, these communications do not
appear to concern the proposed integration of ORS into the NCS program.
Many of these communications constitute the appellant’s discussions with union
officials about his grievance or vacancies posted within BLS. Id. at 111-14,
161-208. In some of the other communications, the appellant discussed with
his colleagues such matters as other vacancies or new hires within BLS.
Id. at 210-13. In any event, the appellant does not re-raise these communications
on review, and we see nothing in them indicating that the appellant reasonably
believed he was disclosing wrongdoing described in section 2302(b)(8).
6 The appellant labeled these communications as disclosures D151, D158, and D160.
IAF, Tab 15 at 217-61.
7 The appellant labeled these communications as disclosures D17, D34, D41, D68-69,
D78, D101, D104-08, D111-16, D119, D121-22, and D147. IAF, Tab 15 at 100-05,
112-14, 120-24, 137-45, 148-51, 185-213, 215-17.13
We modify the initial decision to find that the Board lacks jurisdiction over the
appellant’s claim that he was retaliated against for filing a grievance.
The appellant indicated to OSC that the agency retaliated against him for
filing a grievance. IAF, Tab 17 at 5, 12-13. As the administrative judge
recognized, in its close out letter OSC acknowledged that the appellant believed
management retaliated against him for his union activities. ID at 3; IAF, Tab 1
at 10. In response to the administrative judge’s order on jurisdiction, the
appellant submitted into the record numerous documents that he had sent to OSC
—including a copy of his grievance and communications with his union
representative about his grievance. IAF, Tab 15 at 115-17, 138. However, the
administrative judge failed to address the appellant’s claim that he had been
retaliated against for filing a grievance.
An employee engages in protected activity over which the Board has
jurisdiction in an IRA appeal when he files a grievance to remedy reprisal for
whistleblowing. 5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1), 2302(b)(9)(A)(i);
Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013).
However, the Board does not have jurisdiction over an IRA appeal regarding a
claim of retaliation for filing an appeal, complaint, or grievance that does not
seek to remedy a violation of section 2302(b)(8), i.e., a claim that does not seek
to remedy reprisal for whistleblowing. 5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1),
2302(b)(9)(A)(ii); Mudd, 120 M.S.P.R. 365, ¶ 7; see Mattison v. Department of
Veterans Affairs , 123 M.S.P.R. 492, ¶¶ 7-8 (2016) (explaining that a claim of
reprisal for filing internal agency appeals that did not seek to remedy
whistleblowing reprisal arose under 5 U.S.C. § 2302(b)(9)(A)(ii)).8
8 Prior to December 12, 2017, the whistleblower protection statutory scheme provided
that “cooperating with or disclosing information to the Inspector General of an agency,
or the Special Counsel, in accordance with applicable provisions of law,” is protected.
5 U.S.C. § 2302(b)(9)(C). The National Defense Authorization Act of 2018, Pub. L.
No. 115-91, § 1097(c)(1), 131 Stat. 1283, 1617 (2017), amended section 2302(b)(9)(C)
to provide that, in addition to the Inspector General of an agency or the Special
Counsel, a disclosure to “any other component responsible for internal investigation or
review” is also protected. None of the disclosures the appellant made during the14
Here, the appellant’s grievance concerned his nonselection for promotion in
June 2016. IAF, Tab 15 at 115-17. In his grievance, the appellant alleged that
management violated the collective bargaining agreement by failing to interview
him for the position and thereby engaged in favoritism. Id. at 116. Neither the
appellant nor the record indicates that, during the grievance process, he asserted
that he was not selected for the position because of any of his disclosures.9
Because the grievance did not seek to remedy whistleblower reprisal, it falls
under 5 U.S.C. § 2302(b)(9)(A)(ii), rather than section 2302(b)(9)(A)(i), and the
Board lacks jurisdiction in an IRA appeal to address the appellant’s claim that he
was retaliated against for filing the grievance. See Mudd, 120 M.S.P.R. 365, ¶ 7.
For the reasons stated above, we find that the appellant failed to
nonfrivolously allege that he made a protected disclosure or engaged in protected
activity, and we conclude that the Board therefore lacks jurisdiction over this
appeal. We therefore need not determine all the personnel actions at issue in this
appeal,10 or whether the appellant nonfrivolously alleged that his purportedly
protected disclosures or activities were a contributing factor in those personnel
actions. Accordingly, we affirm the initial decision as modified herein.
grievance process or otherwise were to “any . . . component responsible for internal
investigation or review,” and his disclosures are therefore not protected under section
2302(b)(9)(C).
9 In an email to his union representative in October 2016, the appellant referred to
whistleblower reprisal statutes. IAF, Tab 15 at 138-39. However, it is unclear whether
he intended to communicate that he believed his May 14, 2016 nonselection constituted
whistleblower retaliation. Id. Regardless, the appellant’s grievance had by then
already been settled in July 2016. Id. at 130-31, 321-24, 334.
10 The appellant appears to raise on review a claim that his resignation was involuntary.
PFR File, Tab 1 at 9. It does not appear he raised this claim with OSC. IAF, Tab 15
at 7-8, 16, Tab 17 at 5. Even if he did, he may be able to file a separate appeal
under chapter 75 of any alleged constructive removal. See Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶¶ 14-17 (2013) (finding that despite raising his within-
grade increase (WIGI) denial claim with OSC, the appellant was not precluded from
filing a WIGI appeal regarding that claim because his election to proceed before OSC
on that claim was not knowing and informed). We make no findings herein regarding
the timeliness of, or the Board’s jurisdiction over, such an appeal.15
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.16
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any17
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s18
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Vinluan_Jason_S_CH-1221-19-0201-W-1__Final_Order.pdf | 2024-07-18 | JASON S. VINLUAN v. DEPARTMENT OF LABOR, MSPB Docket No. CH-1221-19-0201-W-1, July 18, 2024 | CH-1221-19-0201-W-1 | NP |
924 | https://www.mspb.gov/decisions/nonprecedential/LaCroix_Bert_I_NY-0842-19-0090-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BERT I. LACROIX,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-0842-19-0090-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Gedety Serralta-Aldrich , Esquire, and Katherine Clark , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the agency’s denial of the appellant’s request for law enforcement
officer (LEO) retirement coverage under the Federal Employees’ Retirement
System (FERS). For the reasons discussed below, we GRANT the agency’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, we REVERSE the initial decision insofar as the
administrative judge found the appellant’s request for a determination regarding
LEO retirement coverage timely, and we VACATE the administrative judge’s
analysis of whether the appellant met the definition of an LEO.
BACKGROUND
The appellant was employed by the agency as a GG-0132-13 Intelligence
Specialist (Operations) from 2004 to 2016. Initial Appeal File (IAF), Tab 10
at 4-29, Tab 18 at 26, Tab 34 at 9. During his employment with the agency, from
approximately March 18, 2007, through approximately August 19, 2015, the
appellant was assigned to a detail with the Joint Terrorism Task Force (JTTF) of
the Federal Bureau of Investigation (FBI). IAF, Tab 18 at 26, Tab 55 at 3-4,
Tab 57 at 4. On August 20, 2016, approximately 1 year after the conclusion of
his detail with the FBI, the appellant resigned from his position with the agency.
IAF, Tab 10 at 29, Tab 55 at 4.
In October 2016, the appellant emailed various agency personnel
requesting LEO retirement coverage for the duration of his JTTF detail, i.e., from
March 18, 2007, through August 19, 2015. IAF, Tab 33 at 7-9, Tab 60 at 61-63.
Thereafter, on July 24, 2017, the appellant submitted an additional request for
LEO retirement coverage. IAF, Tab 18 at 4-7, Tab 55 at 3. On February 5, 2019,
the agency denied the appellant’s request, finding that (1) his request was
untimely and (2) he failed to show that he met the definition of an LEO under
5 C.F.R. § 842.802 during the relevant timeframe. IAF, Tab 12 at 4-5.
The appellant filed a Board appeal challenging the agency’s denial of his
request for LEO retirement coverage under FERS, and he asserted that the agency
had “failed to advise [him] of his right to file an MSPB appeal after he inquired
regarding his status.” IAF, Tab 1 at 4. The appellant requested a hearing on the
matter. Id. at 2. Thereafter, the administrative judge clarified that the issues
before the Board were (1) whether the appellant’s request for a determination2
regarding LEO retirement coverage was timely pursuant to regulation2 and
(2) whether the appellant could show by preponderant evidence that he was
entitled to LEO retirement coverage under FERS from March 18, 2007,3 through
August 19, 2015. IAF, Tab 55 at 2, Tab 57 at 4.
Following a hearing on the matter, the administrative judge issued an initial
decision reversing the agency’s determination and finding that the appellant
showed by preponderant evidence that he qualified for LEO retirement coverage
under FERS from March 18, 2007, through August 19, 2015. IAF, Tab 67, Initial
Decision (ID) at 1, 15-16. In so finding, the administrative judge concluded that
the appellant had timely filed his request under 5 C.F.R. § 842.804(c). ID
at 8-10. She also concluded that the appellant proved by preponderant evidence
that he met the definition of an LEO under 5 U.S.C. § 8401(17)(A) and 5 C.F.R.
§ 842.802. ID at 10-15.
The agency has filed a petition for review of the initial decision, the
appellant has responded in opposition, and the agency has filed a reply. Petition
for Review (PFR) File, Tabs 1, 3-4. In its petition and reply, the agency contends
that the administrative judge erroneously concluded that the appellant was
entitled to LEO retirement coverage. PFR File, Tab 1 at 4-27, Tab 4 at 4-12. The
agency contends, among other things, that the administrative judge erred in
finding that the appellant’s request LEO retirement coverage was timely filed.
PFR File, Tab 1 at 9-10, Tab 4 at 5-9. In his response, the appellant urges the
2 In her order memorializing the parties’ prehearing conference, the administrative
judge erroneously summarized this issue as whether “[the appellant’s] appeal was
timely pursuant to regulation.” IAF, Tab 55 at 2 (emphasis added). Neither party has
disputed the timeliness of the appellant’s Board appeal; thus, we find that this was a
misstatement and we have rephrased the issue accordingly.
3 Although the parties stipulated that the appellant sought LEO retirement coverage for
July 22, 2007, through August 19, 2015, IAF, Tab 55 at 2-4, the appellant subsequently
clarified that he sought coverage for March 18, 2007, through August 19, 2015, IAF,
Tab 57 at 4. Although the agency challenges the administrative judge’s findings
associated therewith, Petition for Review File, Tab 1 at 4 n.1, given our findings herein,
we need not resolve this issue. 3
Board to affirm the administrative judge’s conclusion that he is entitled to LEO
retirement coverage. PFR File, Tab 3 at 4-9. The appellant contends that his
request was timely because he first reported to the agency that he was
“performing law enforcement officer work shortly after being assigned to the
position in 2007,” he requested “LEO coverage on a number of other occasions as
it was a frequent topic at conferences,” and he emailed agency managers about
LEO credit on April 4, 2016. Id. at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over a claim for FERS LEO retirement coverage
under 5 U.S.C. § 8461(e)(1), which provides that “an administrative action or
order affecting the rights or interests of an individual or of the United States
under the provisions of this chapter administered by the Office [of Personnel
Management] may be appealed to the Merit Systems Protection Board under
procedures prescribed by the Board.” See Streeter v. Department of Defense ,
80 M.S.P.R. 481, ¶¶ 2, 5 (1998); 5 C.F.R. § 842.807(a). A Federal employee
seeking LEO retirement coverage under FERS bears the burden of proving
entitlement thereto by a preponderance of the evidence. Watson v. Department of
the Navy, 262 F.3d 1292, 1298 (Fed. Cir. 2001); Fritts v. Department of
Homeland Security , 102 M.S.P.R. 265, ¶ 6 (2006). To be eligible for LEO
retirement coverage under FERS, an appellant must meet the statutory definition
of an LEO under 5 U.S.C. § 8401(17). Watson, 262 F.3d at 1297-98.
An employee who qualifies for LEO retirement coverage receives a larger
annuity than other FERS retirees; however, an LEO is subject to larger salary
deductions, i.e., a one-half percent higher withholding rate, during his
employment.4 See 5 U.S.C. § 8422(a); Bingaman v. Department of the Treasury ,
127 F.3d 1431, 1433-34 (Fed. Cir. 1997). Implementing regulations promulgated
4 Additionally, an employee who qualifies for LEO retirement coverage under FERS can
retire at age 50 after completing 20 years of service or at any age after completing
25 years of service. See 5 U.S.C. § 8412(d)(1)-(2).4
by the Office of Personnel Management provide that, if an employee occupies a
position that is not subject to the one-half percent higher withholding rate (i.e., a
non-LEO position), and the employee does not, within 6 months after entering the
position or any significant change in the position, formally and in writing seek a
determination from his employing agency that his position is properly covered by
the higher withholding rate (i.e., that the position is properly classified as an LEO
position), then the agency head’s determination that the service does not qualify
for LEO retirement coverage is presumed to be correct. 5 C.F.R. § 842.804(c).
This presumption may be rebutted by a preponderance of the evidence that the
employee was unaware of his non-LEO status or was prevented by cause beyond
his control from timely requesting that his official status be changed. Id. If the
appellant fails to request LEO retirement coverage within 6 months or show good
cause for his failure to do so, the agency’s determination that the appellant does
not qualify for LEO coverage will be deemed conclusive and the Board will not
review the merits of the agency’s determination. Bingaman, 127 F.3d at 1441;
see 5 C.F.R. §§ 842.804(c), 842.807(a).
We reverse the administrative judge’s finding that the appellant timely filed his
request for LEO retirement coverage under 5 C.F.R. § 842.804(c).
The administrative judge misapplied 5 C.F.R. § 842.804(c).
In her initial decision, the administrative judge credited the appellant’s
unrefuted testimony that he resigned from the agency on August 20, 2016, and
that “he emailed several agency officials attaching a written request for LEO
credit on October 5, 2016, less than [2] months later.” ID at 8. As a result, the
administrative judge concluded that the appellant’s request for LEO retirement
coverage for the period of March 18, 2007, through August 19, 2015, i.e., for the
period of time during which he was detailed to the JTTF, was therefore timely.
ID at 8-10. We disagree.
The applicable regulation, 5 C.F.R. § 842.804(c), requires that a request for
an agency determination regarding LEO retirement coverage for a position be5
made “within 6 months after entering the position or after any significant change
in the position.” 5 C.F.R. § 842.804(c) (emphasis added). Here, however, the
administrative judge found the appellant’s request timely because he filed it
within 6 months of August 20, 2016, the date on which he resigned from the
agency, which was approximately 1 year after the conclusion of his detail with
the JTTF. ID at 8; IAF, Tab 10 at 29, Tab 55 at 4. Thus, the administrative judge
misapplied section 842.804(c).
The factual record, which is fully developed, indicates that the appellant
entered his position with the agency in 2004. IAF, Tab 34 at 9. Thereafter,
effective March 18, 2007, he was assigned to a detail with the JTTF. IAF, Tab 18
at 26. This assignment, which was reflected on the appellant’s Standard Form 50,
id., altered both his job duties and the type of work that he was performing, IAF,
Tab 11 at 4-7, Tab 60 at 163-78. We therefore find that the assignment
constituted a “significant change in [his] position” for purposes of 5 C.F.R.
§ 842.804(c). See Letz v. Department of the Interior , 474 F.3d 1309, 1313 (Fed.
Cir. 2007) (explaining that “significant change in position” means a significant
change in the type of work or duties of a position). Thus, for his request to have
been timely, the appellant needed to have submitted it within 6 months of
March 18, 2007, not within 6 months of August 20, 2016.
The appellant did not make a formal, written request for LEO retirement
coverage within 6 months of March 18, 2007.
Section 842.804(c) requires that a request for an agency determination
regarding LEO retirement coverage be made “formally and in writing.” Here, the
record is devoid of any indication that the appellant filed a written request for
LEO retirement benefits within 6 months of March 18, 2007. See 5 C.F.R.
§ 842.804(c). Indeed, the appellant’s first written request for LEO retirement
coverage was not until 2016, nine years after the nature of his position changed.
IAF, Tab 18 at 26, Tab 33 at 7-9, Tab 60 at 61-63; see Letz, 474 F.3d at 1312
(explaining that the time limit set forth in section 842.804(c) serves a significant6
policy goal by preventing employees from postponing their appeals for many
years thereby creating fiscal uncertainties for agencies).5
The appellant contends that he informed the agency in 2007 that he and
other agency JTTF assignees “were performing law enforcement officer work”
and that the topic of their potential entitlement to LEO retirement coverage “was
a frequent topic at conferences.” PFR File, Tab 3 at 4-5. However, the appellant
failed to adduce evidence that any of these interactions occurred in writing, much
less constituted a formal request for coverage. See 5 C.F.R. § 842.804(c). Thus,
the agency’s general awareness that its JTTF assignees believed that they should
qualify for LEO retirement benefits does not satisfy the formality requirements of
5 C.F.R. § 842.804(c). See Bingaman, 127 F.3d at 1441 (explaining that an
agency’s alleged awareness that members of a particular group of employees
would like LEO retirement coverage does not satisfy the formal, written request
requirement under 5 C.F.R. § 842.804(c)). Thus, we conclude that the appellant’s
request was untimely.
The appellant has not shown good cause for his untimely request.
Under 5 C.F.R. § 842.804(c), if an employee does not timely file his
request for LEO retirement coverage, “the agency head’s determination that the
service was not so covered at the time of the service is presumed to be correct.”
However, the provision provides that an appellant may rebut this presumption by
showing by a preponderance of the evidence either that (1) he was unaware of his
non-LEO status or (2) he was prevented by cause beyond his control from timely
requesting that his official status be changed. 5 C.F.R. § 842.804(c). Here, the
appellant has not alleged either that he was unaware of his non -LEO status or that
circumstances beyond his control prevented him from timely requesting an LEO
designation for retirement purposes. See id. Instead, he has contended that the
5 Indeed, as set forth in the initial decision, it is undisputed that the appellant never
made LEO retirement contributions under FERS during the period of time for which he
seeks LEO retirement coverage. ID at 6; see 5 U.S.C. § 8422(a).7
agency “failed to advise [him] of his right to file an MSPB appeal after he
inquired regarding his status.” IAF, Tab 1 at 4. Insofar as both the U.S. Court of
Appeals for the Federal Circuit and the Board have found that an agency has no
affirmative duty to advise employees in this capacity, this assertion is unavailing.
E.g., Bingaman, 127 F.3d at 1442; Doyle v. Department of Veterans Affairs ,
80 M.S.P.R. 640, ¶ 8 (1999); Caponio v. Department of the Treasury ,
73 M.S.P.R. 671, 678, review dismissed , 124 F.3d 224 (Fed. Cir. 1997). To the
extent the administrative judge found otherwise, ID at 9 n.3, her conclusion is
incorrect.
We vacate the administrative judge’s analysis of whether the appellant met the
definition of an LEO.
In Bingaman, the Federal Circuit analyzed the interplay between
section 842.804(c) and 5 C.F.R. § 842.807(a), which provides that “[t]he final
decision of an agency head denying an individual’s request for approval of a
position as [a rigorous LEO position] made under § 842.804(c) may be appealed
to the Merit Systems Protection Board under procedures prescribed by the
Board.” Bingaman, 127 F.3d at 1441. Reading these provisions together, the
Federal Circuit concluded that, if an appellant fails to request LEO retirement
coverage within 6 months or show good cause for his failure to do so, then the
agency’s determination that his position did not qualify for LEO retirement
coverage will be deemed conclusive and the Board will not review the merits of
that determination. Id.; see 5 C.F.R. §§ 842.804(c), 842.807(a). Because we find
that the appellant’s request was untimely and that he failed to show good cause
for his untimeliness, we lack jurisdiction over the merits of the agency’s
determination; accordingly, we vacate the administrative judge’s analysis of
whether the appellant met the statutory definition of an LEO under 5 U.S.C.
§ 8401(17)(A) and 5 C.F.R. § 842.802. ID at 10-15; see Bingaman, 127 F.3d
at 1441. 8
The appellant has failed to meet his burden of proving that he is entitled to
receive the benefits he seeks. Accordingly, we reverse the initial decision insofar
as the administrative judge found the appellant’s request for a determination
regarding LEO retirement coverage timely, and we vacate her analysis of whether
the appellant met the definition of an LEO.
ORDER
This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | LaCroix_Bert_I_NY-0842-19-0090-I-1__Final_Order.pdf | 2024-07-18 | BERT I. LACROIX v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-0842-19-0090-I-1, July 18, 2024 | NY-0842-19-0090-I-1 | NP |
925 | https://www.mspb.gov/decisions/nonprecedential/Smith_ForrestSF-3443-20-0458-I-1__FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FORREST SMITH,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-3443-20-0458-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Crista Kraics , Esquire, Stafford, Virginia, for the appellant.
Aisha Richey , Esquire, Patuxent River, 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 reduction in pay appeal for lack of jurisdiction because he failed to
establish he suffered a decrease in his basic rate of pay. 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).
At no point, either below or on review, has the appellant claimed that the
agency decreased his basic pay of $28.97 per hour. Initial Appeal File (IAF),
Tab 8 at 14; see Defense Civilian Personnel Advisory Service, Federal Wage
System Regular and Special Production Facilitating Wage Rate Schedules for
U.S. Citizens Wage Employees in Foreign Areas (January 6, 2020) ,
https://wageandsalary.dcpas.osd.mil/Content/AF%20Schedules/survey-sch/
900/900R-06Jan2020.html (last visited July 18, 2024). Instead, on petition for
review, the appellant argues that the administrative judge mischaracterized case
law and erred in holding that the agency is not bound by language in various
documents, including his position description, to pay him for 168 hours per pay
period while deployed aboard an aircraft carrier. Petition for Review (PFR) File,
Tab 1 at 2, 9-10. Thus, the appellant alleges that the agency improperly reduced
his deployed pay when it failed to pay him an additional 88 hours, at a rate of
$43.46 per hour, for each pay period while he was deployed. Id. at 9-10; IAF,
Tab 1 at 6-7.
The administrative judge properly applied Shaw v. United States , 640 F.2d
1254 (Ct. Cl. 1981), which explains that “public employment does not . . . give2
rise to a contractual relationship in the conventional sense.”2 Shaw, 640 F.2d
at 1260 (quoting Urbina v. United States , 428 F.2d 1280, 1284 (Ct. Cl. 1970));
IAF, Tab 10, Initial Decision (ID) at 5. This principle has also been held by our
reviewing court. See Chu v. United States , 773 F.2d 1226, 1228 (Fed. Cir. 1985)
(explaining that “absent specific legislation, [F]ederal employees derive benefits
and emoluments of their positions from appointment rather than from any
contractual or quasi-contractual relationship”); see also Zucker v. United States ,
758 F.2d 637, 640 (Fed. Cir. 1985) (finding that Federal employees’ entitlement
to retirement benefits derived from statutes and regulations rather than from
ordinary contract principles). Here, the appellant plainly uses the doctrines of
contract law to argue that the position description obligated the agency to pay him
an additional 88 hours per pay period while deployed.3 PFR File, Tab 1 at 9-10.
The appellant cites no legal authority to support this assertion, and moreover, the
proposition is clearly contrary to existing precedent. See Shaw, 640 F.2d at 1260;
Chu, 773 F.2d at 1227-28; Zucker, 758 F.2d at 640.
As the appellant did not suffer a reduction in basic pay, but instead, a
reduction in overtime pay, a type of premium pay, the appeal was properly
dismissed for lack of jurisdiction.4 Mattern v. Department of the Treasury ,
2 The decisions of the former U.S. Court of Claims have been adopted by the U.S. Court
of Appeals for the Federal Circuit as binding precedent . South Corporation v. United
States, 690 F.2d 1368, 1370-71 (Fed. Cir. 1982).
3The appellant on review claims that the agency amended his position description after
he filed his appeal to remove the language regarding the deployed shift schedule, which
he asserts demonstrates the agency’s admission of error. PFR File, Tab 1 at 10. As we
are unpersuaded that the position description obligates the agency to pay the appellant
an additional 88 hours per pay period, we find this argument to be unpersuasive.
4 The appellant also argues that the administrative judge misstated the terms and impact
of a document signed by the appellant, which allegedly acknowledged that overtime
would be kept to a minimum and would be given only when justified and approved.
PFR File, Tab 1 at 8. However, the administrative judge never made a finding in
reference to the terms or impact of this document. The citation used by the appellant
directs us to the administrative judge’s characterization of the agency’s contentions in
this matter, not her independent determinations or findings. Id. at 8 n.4; ID at 3. As the
document had no bearing on the administrative judge’s findings in this case, we see no3
291 F.3d 1366, 1370 (Fed. Cir. 2002) (stating that loss of premium pay, such as
overtime, is not an appealable action to the Board); Riojas v. U.S. Postal Service ,
88 M.S.P.R. 230, ¶ 7 (2001) (stating that premium pay is not part of basic pay and
loss of such pay is not appealable to the Board); see Wood v. Merit Systems
Protection Board , 938 F.2d 1280, 1282 (Fed. Cir. 1991) (rejecting appellant’s
claim that she suffered a reduction in pay because her hours were reduced
resulting in a decrease in her income).
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.
need to address it further.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Smith_ForrestSF-3443-20-0458-I-1__FInal_Order.pdf | 2024-07-18 | FORREST SMITH v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-3443-20-0458-I-1, July 18, 2024 | SF-3443-20-0458-I-1 | NP |
926 | https://www.mspb.gov/decisions/nonprecedential/Oyedokun_Laura_C_PH-0752-19-0381-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA CLAUDETTE OYEDOKUN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-19-0381-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laura Claudette Oyedokun , Baltimore, Maryland, pro se.
Melissa Mack , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to clarify the proper standard for a
nonpreference-eligible individual in the excepted service, we AFFIRM the initial
decision.
BACKGROUND
On January 22, 2019, the agency appointed the appellant, a nonpreference
eligible, to the excepted service position of General Schedule-07 Dental
Assistant. Initial Appeal File (IAF), Tab 6 at 8-9. The appointment was subject
to a 1-year probationary period. Id. Effective July 26, 2019, the appellant was
terminated during her probationary period based on the charges of unacceptable
conduct and failure to follow infection control procedures. IAF, Tab 1 at 8-11.
The appellant appealed her termination to the Board. IAF, Tab 1. She did
not request a hearing. Id. at 2. The administrative judge informed the appellant
that the Board may lack jurisdiction over her termination appeal, set forth the
jurisdictional standard applicable to individuals in the competitive service, and
ordered her to file evidence or argument on the jurisdictional issue. IAF, Tab 2.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6.
The appellant did not respond to the jurisdictional order or the agency’s motion. 2
The administrative judge issued an initial decision that dismissed the
appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1. He noted
that the acknowledgment order provided the appellant with incorrect
jurisdictional notice. ID at 3. He explained that, to be an “employee” in the
excepted service with Board appeal rights, the individual must be a preference
eligible in the excepted service who has completed 1 year of current continuous
service in the same or similar positions; if not a preference eligible, an individual
who is not serving a probationary or trial period under an initial appointment
pending conversion to the competitive service or who has completed 2 years of
current continuous service in the same or similar positions in an Executive agency
under other than a temporary appointment limited to 2 years or less.2 ID at 2-3.
The administrative judge stated that, as an “excepted probationer,” the appellant
was required to prove that she had completed 1 year of current continuous service
in the same or similar position in an Executive agency under other than a
temporary appointment limited to 1 year or less, and she did not satisfy this
burden. Id. He considered whether her prior service met the requirements for
tacking and found that it did not. ID at 3-4. The administrative judge therefore
concluded that the appellant did not make a nonfrivolous allegation that she was
an “employee” under 5 U.S.C. § 7511. ID at 4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She asserts that she has years of Federal service in “comparable
organization(s)” such as Walter Reed Army Medical Center and Bethesda Naval
Hospital. Id. at 5. She indicates that she was employed by the Department of
Defense (DOD) on January 31, 2011, and she transitioned to the agency on
January 22, 2019. Id. at 7. She also asserts that she was “terminated as a
permanent tenured employee while on [Family and Medical Leave Act (FMLA)]
leave” after a car crash on her way home from work. Id. at 5-6. In support of her
assertions, she provides, among other things, a Standard Form (SF)-50 showing a
2 This is a correct statement of the law. 5 U.S.C. §§ 7511(a)(1)(B), (a)(1)(C). 3
general adjustment on November 7, 2018, and an FMLA Certification of Health
Care Provider for Employee’s Serious Health Condition.3 Id. at 12, 14. The
agency has responded in opposition to her petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not made a nonfrivolous allegation that she is an employee
under 5 U.S.C. § 7511(a)(1)(C).
Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 8
(2017), aff’d sub. nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018); see 5 U.S.C. §§ 7511(a)(1), 7513(d). In analyzing whether
the appellant nonfrivolously alleged that she was an “employee” under 5 U.S.C.
§ 7511(a)(1), the administrative judge correctly identified the different standards
for a preference eligible and a nonpreference eligible in the excepted service, but
he did not make a finding as to her status. ID at 2-3. However, he concluded
that, as an individual in the excepted service, the appellant was required to
establish that she had completed 1 year of current continuous service in the same
or similar positions in an Executive agency under other than a temporary
appointment limited to 1 year or less, and she did not do so. ID at 3. The
administrative judge’s analysis appears to conflate the language in 5 U.S.C.
§ 7511(a)(1)(B) for a preference-eligible individual with 5 U.S.C. § 7511(a)(1)
3 The appellant did not make arguments implicating the FMLA or provide such evidence
below. 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). In addition, 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. Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). However, the appellant’s arguments
and evidence may relate to the issue of jurisdiction, and the issue of the Board’s
jurisdiction is always before the Board and may be raised at any time. Ney v.
Department of Commerce , 115 M.S.P.R. 204, ¶ 7 (2010). Thus, we considered the
appellant’s submissions on review. Because the agency did not have an opportunity to
respond to such arguments and evidence below, we also considered the agency’s
response and documentation submitted on review. 4
(C) for a nonpreference-eligible individual. Because the appellant does not
allege, nor does the record show, that she is a preference eligible, it was incorrect
for the administrative judge to rely in any way on the standard in 5 U.S.C.
§ 7511(a)(1)(B). Nonetheless, because the administrative judge accurately
identified in the initial decision how the appellant can meet her jurisdictional
burden under 5 U.S.C. § 7511(a)(1)(C), he has essentially cured his error.
Easterling v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11 (2008); Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984).
As a nonpreference eligible in the excepted service, the appellant
may appeal her termination to the Board if she qualifies as an “employee”
under 5 U.S.C. § 7511(a)(1)(C). Martinez v. Department of Homeland
Security, 118 M.S.P.R. 154, ¶ 5 (2012). An “employee” under 5 U.S.C. § 7511(a)
(1)(C)(i)-(ii) is defined as an individual in the excepted service (other than a
preference eligible) “who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service” or “who has
completed 2 years of current continuous service in the same or similar positions
in an Executive agency under other than a temporary appointment limited to
2 years or less.” Martinez, 118 M.S.P.R. 154, ¶ 5. The Board has jurisdiction if
either section 7511(a)(1)(C)(i) or (ii) is satisfied. Id.
The appellant does not allege, and there is nothing in the record to suggest,
that hers was an initial appointment pending conversion to the competitive
service. Therefore, subsection 7511(a)(1)(C)(i) does not apply. See Van Wersch
v. Department of Health and Human Services , 197 F.3d 1144, 1150 n.6 (Fed. Cir.
1999); Forest v. Merit Systems Protection Board , 47 F.3d 409, 411-12 (Fed. Cir.
1995). Therefore, the only question is whether she has completed 2 years of
current continuous service in the same or similar positions in an Executive agency
under other than a temporary appointment limited to 2 years or less. Current
continuous service or employment means a period of employment or service that
immediately precedes the action at issue without a break in service of a workday.5
Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 14 (2011);
Beets v. Department of Homeland Security , 98 M.S.P.R. 451, ¶ 7 (2005);
5 C.F.R. § 752.402(b).
The administrative judge considered whether the appellant’s prior service
met the requirements for tacking under subsection 7511(a)(1)(C)(ii). ID at 4. He
noted that he provided the appellant with an opportunity to submit evidence on
this issue, which she failed to do. Id. The appellant asserts on review that she
entered Federal service with DOD on January 31, 2011, and transitioned to the
agency on January 22, 2019. PFR File, Tab 1 at 7. With its response, the agency
includes SF-50s showing that the appellant was employed as a DOD Dental
Assistant from January 31, 2011, to March 2, 2018, when she resigned from her
position, and that she was employed as an agency Dental Assistant from
January 22, 2019, to July 26, 2019, when she was terminated from her position.4
PFR File, Tab 3 at 9, 11-13, 18-20. Because the appellant does not allege, nor
does the record show, that she completed 2 years of service in an agency position,
she can establish jurisdiction under subsection 7511(a)(1)(C)(ii) only if her DOD
prior service can be counted toward the current continuous service requirement.
The appellant’s appointment as an agency Dental Assistant was preceded by a
break in service of more than a workday. PFR File, Tab 3 at 18-19. Therefore,
the appellant has not made a nonfrivolous allegation that she satisfied the
requirements of 5 U.S.C. § 7511(a)(1)(C)(ii).
For the reasons stated above, we find that the appellant has not made a
nonfrivolous allegation that she was an “employee” under 5 U.S.C. § 7511(a)(1)
(C)(i) or (ii).
The appellant’s remaining arguments are immaterial to the jurisdictional issue.
The appellant asserts that the agency violated 29 C.F.R. § 825.220, which
prohibits interference with an employee’s rights under the FMLA. PFR File,
4 We have considered this evidence because it is largely consistent with the appellant’s
allegations.6
Tab 1 at 5. The Board will adjudicate an FMLA claim only in connection with an
otherwise appealable action that is related to leave. Lua v. U.S. Postal Service ,
87 M.S.P.R. 647, ¶ 12 (2001). Such circumstances are not present here. We find
that the appellant’s receipt of FMLA leave has no bearing on whether she has
made a nonfrivolous allegation of jurisdiction over this matter.
The appellant also raises arguments that pertain to the merits of the
termination decision rather than the Board’s jurisdiction over the appeal.
PFR File, Tab 1. Any such arguments provide no basis to disturb the
initial decision. See Yakupzack v. Department of Agriculture , 10 M.S.P.R. 180,
182 (1982) (stating that the Board’s review of probationary terminations
does not include a review of the merits of the termination action);
Kellum v. Veterans Administration , 2 M.S.P.R. 65, 67 (1980) (finding that the
sufficiency and propriety of the agency’s misconduct allegations concern
substantive issues that are immaterial to the appeal, unless the Board has
jurisdiction over the probationary termination).
Thus, we affirm the initial decision as modified herein.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Oyedokun_Laura_C_PH-0752-19-0381-I-1__Final_Order.pdf | 2024-07-18 | LAURA CLAUDETTE OYEDOKUN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-19-0381-I-1, July 18, 2024 | PH-0752-19-0381-I-1 | NP |
927 | https://www.mspb.gov/decisions/nonprecedential/Schultz_Timothy_M_CH-3330-17-0162-P-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY M. SCHULTZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-3330-17-0162-P-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher C. Fry , Esquire, Dubuque, Iowa, for the appellant.
Gina M. Ozelie , Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the addendum initial
decision, which denied his request for damages. On petition for review, the
appellant challenges the administrative judge’s determination that he was not
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
entitled to lost wages and benefits. Petition for Review File, Tab 1. Generally,
we grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review, and
AFFIRM the addendum 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 | Schultz_Timothy_M_CH-3330-17-0162-P-1__Final_Order.pdf | 2024-07-18 | TIMOTHY M. SCHULTZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3330-17-0162-P-1, July 18, 2024 | CH-3330-17-0162-P-1 | NP |
928 | https://www.mspb.gov/decisions/nonprecedential/Wilson_Randall_E_CH-0714-19-0113-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDALL E. WILSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0714-19-0113-I-1
DATE: July 18, 2024
THIS ORDER IS NONPRECEDENTIAL1
Randall E. Wilson , Decatur, Illinois, pro se.
Erin E. Milligan , 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 an untimely petition for review of the initial
decision, which dismissed his removal appeal as untimely filed with no showing
of good cause for the delay. For the reasons discussed below, we DISMISS the
petition for review as untimely filed, but REOPEN the appeal on our own motion
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
pursuant to 5 C.F.R. § 1201.118, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
Effective September 24, 2018, the agency removed the appellant pursuant
to the authority set forth in the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L.
No. 115-41, § 202(a), 131 Stat. 862, 869-73 (2017) (codified as amended at
38 U.S.C. § 714), from his Housekeeping Aid position with the agency’s
Environmental Management Service. Initial Appeal File (IAF), Tab 1 at 7, 11. In
its decision letter, the agency informed the appellant of his options in seeking
review of the action, including filing a Board appeal, seeking corrective action
from the Office of Special Counsel, filing a grievance, or filing a discrimination
complaint with the agency’s Office of Resolution Management (ORM). Id.
at 7-9. The decision letter notified the appellant of the 10-business-day deadline
for filing a Board appeal, as well as the 45-calendar-day deadline for contacting
ORM, and stated that “[w]hichever is filed first . . . shall be considered an
election by you to proceed under that appeal process.” Id. at 8-9.
On October 10, 2018, the appellant filed a formal equal employment
opportunity (EEO) complaint with ORM alleging that his removal was based on
race and sex discrimination. Id. at 16. Thereafter, he filed a December 3, 2018
Board appeal also challenging his removal and referencing his EEO complaint.
Id. at 2, 20, 22.
The administrative judge ordered the agency to submit, within 20 days of
the date of the order, a statement regarding whether the appellant had filed a
formal complaint of discrimination on the action being appealed, as well as the
current status of the complaint if one had been filed. IAF, Tab 2 at 6, 8. In
addition, the administrative judge informed the appellant that there was a2
question as to whether he had filed his appeal within the 10-business-day time
limit required by 38 U.S.C. § 714(c)(4)(B) and ordered him to show that he had
timely filed his appeal or there was a basis to accept his late-filed appeal. IAF,
Tab 4 at 1-4. The administrative judge also ordered the agency to file any
evidence and argument it had on the timeliness issue. Id. at 4.
After both the appellant and the agency did not respond to the orders, the
administrative judge dismissed the appeal as untimely filed with no showing of
good cause for the delay. IAF, Tab 6, Initial Decision (ID) at 1, 4. The
administrative judge found that the appellant did not file his appeal within the
10-business-day time limit set forth at 38 U.S.C. § 714(c)(4)(B). ID at 3. He
further found that the appellant offered no excuse for the delay and made no
showing of due diligence, noting that any inexperience with legal matters or
unfamiliarity with Board procedures did not warrant a waiver of the time limit.
ID at 3. The appellant has filed an untimely petition for review, to which the
agency has not responded. Petition for Review (PFR) File, Tab 1. The Office of
the Clerk of the Board advised the appellant that his petition for review was
untimely and provided him with an opportunity to request that his petition be
accepted as timely or show good cause for his delay. PFR File, Tab 2 at 2.
Neither party responded to the Clerk’s Office.
ANALYSIS
We dismiss the petition for review as untimely filed with no showing of good
cause for the delay.
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 final on April 4, 2019, unless a petition for review was filed by that date.
ID at 4. The appellant filed his petition for review on September 18, 2019, over3
5 months late.2 Petition for Review (PFR) File, Tab 1 at 10. Although the Acting
Clerk of the Board afforded the appellant an opportunity to show that his petition
for review was timely filed or that good cause existed for the late filing, PFR
File, Tab 2, the appellant did not respond to the Acting Clerk’s notice.
The Board may waive the time limit for filing a petition for review upon a
showing of good cause for the untimely filing. 5 C.F.R. § 1201.114(g). To
establish good cause, the appellant must show that 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.
The appellant’s arguments on review regarding the merits of his removal,
PFR File, Tab 1 at 3, are not relevant to the timeliness of his petition for review,
see Marasco v. U.S. Postal Service , 66 M.S.P.R. 555, 558 (1995). Moreover, his
claim that his attorney “quit the case,” PFR File, Tab 1 at 3, does not establish
good cause for the filing delay, see Lawson v. Department of Homeland Security ,
102 M.S.P.R. 185, ¶ 6 (2006); Huskins v. U.S. Postal Service , 100 M.S.P.R. 664,
¶ 6 (2006). Although the appellant asserts that his “mail” was sent to the wrong
address, PFR File, Tab 1 at 3, it is not clear whether he is referring to the
2 On September 18, 2019, the appellant mailed his petition for review to the Board’s
Central Regional Office, which then forwarded it to the Office of the Clerk of the
Board. Petition for Review File, Tab 1 at 1, 10. A pleading submitted by mail
generally is considered to be filed on the postmark date, 5 C.F.R. § 1201.4(l), even
when it is submitted to the wrong Board office, Branch v. Department of the Army ,
110 M.S.P.R. 663, ¶¶ 6-7 (2009). Thus, we find that September 18, 2019, is the filing
date of the appellant’s petition for review.4
agency’s decision notice or the Board’s initial decision.3 In any event, the
certificate of service attached to the initial decision, IAF, Tab 7, shows that it was
sent by mail to his address of record, IAF, Tab 1 at 1, which is also the same
return address identified in his petition for review, PFR File, Tab 1 at 2, 10.
Although the appellant’s pro se status weighs in favor of finding good
cause, this factor is outweighed by the remaining factors. See Allen v. Office of
Personnel Management , 97 M.S.P.R. 665, ¶¶ 8, 10 (2004). Moreover, the length
of the appellant’s 5-month filing delay is significant. See Summerset v.
Department of the Navy , 100 M.S.P.R. 292, ¶ 7 (2005) (finding a 33-day filing
delay significant). In addition, the appellant has not presented any evidence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from timely filing a petition for review. Therefore, under the
circumstances of this appeal, including the appellant’s failure to respond to the
Office of the Clerk of the Board’s notice, we find that the appellant has failed to
demonstrate due diligence or ordinary prudence that would establish good cause
for his untimely filing. See Cabarloc v. Department of Veterans Affairs ,
112 M.S.P.R. 453, ¶¶ 9-11 (2009) (dismissing the pro se appellant’s petition for
review as untimely filed with no good cause shown for the 10-day delay when he
failed to respond to the Clerk’s notice regarding timeliness).
We reopen the appeal on our own motion, vacate the initial decision, and remand
the appeal for further adjudication consistent with this Remand Order.
Parties who appear before the Board are expected to adhere to filing
deadlines, and ordinarily, the Board will not reopen an appeal to cure the
untimeliness of a petition for review. Gordon-Cureton v. U.S. Postal Service ,
107 M.S.P.R. 79, ¶ 11 (2007). Still, the Board will not turn a blind eye to clear
and material errors that have prejudiced a party’s rights. Id. Notwithstanding the
untimeliness of a petition for review, the Board has the discretion to reopen an
3 The appellant has not alleged on review that he received the initial decision more than
5 calendar days after the February 28, 2019 date of its issuance. See ID at 1. Thus, he
has not alleged or shown that he filed a timely petition for review.5
appeal under 5 C.F.R. § 1201.118 to prevent a manifest injustice when an error
implicates a party’s basic procedural rights. Id. Moreover, the Board recognizes
that reopening and reconsideration may be appropriate when there is clear and
material legal error, such as a conflict between the holding of the decision and a
controlling precedent, either because of oversight or a change in the controlling
law. McCarthy v. Merit Systems Protection Board , 809 F.3d 1365, 1372-73 (Fed.
Cir. 2016); Beck v. General Services Administration , 86 M.S.P.R. 489, 494
(2000). Here, as discussed below, the administrative judge did not have the
benefit of the Board’s decision in Wilson v. Department of Veterans Affairs ,
2022 MSPB 7, which clarified the application of the 10-business-day time limit
set forth at 38 U.S.C. § 714(c)(4)(B). ID at 3. Under Wilson, the appeal was not
untimely filed. We therefore find it appropriate to reopen this appeal. See
Gordon-Cureton, 107 M.S.P.R. 79, ¶ 11.
As set forth above, the agency took the instant action under the VA
Accountability Act, which permits an employee to appeal a removal to the Board
“not later than 10 business days after the date of” the action. 38 U.S.C.
§ 714(c)(4)(B). Because the agency effected the removal on September 24, 2018,
an appeal under section 714(c)(4)(B) would have been due on or about October 9,
2018.4 Thus, the appellant’s December 3, 2018 Board appeal would be nearly
2 months untimely filed under the time limit set forth at section 714(c)(4)(B).
Nevertheless, section 714 is silent as to the procedures and filing times for
a Board appeal in which, as here, an appellant seeks review of a matter within the
Board’s appellate jurisdiction and also raises a claim of discrimination or
retaliation in violation of EEO statutes, known as a mixed case. Wilson v.
Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 12, 17. An appellant has two
options when filing a mixed case: (1) he may initially file a mixed-case EEO
complaint with his employing agency followed by an appeal to the Board; or
4 In calculating this deadline, we note that October 8, 2018, the second Monday in
October, was designated a legal public holiday. 5 U.S.C. § 6103(a).6
(2) he may file a mixed-case appeal with the Board and raise his discrimination
claims in connection with that appeal. Id., ¶ 13. An employee may file either a
mixed-case complaint or a mixed-case appeal, but not both, and whichever is
filed first is deemed an election to proceed in that forum. Id.
Under 5 U.S.C. § 7702(a)(2), an employee may file an EEO complaint in a
mixed case, which an agency “shall resolve . . . within 120 days.” If the agency
fails to issue a final decision within 120 days, the employee’s right to file a Board
appeal vests and he may appeal to the Board “at any time” thereafter. 5 U.S.C.
§ 7702(a)(2), (e)(2); Wilson, 2022 MSPB 7, ¶ 13 ; 5 C.F.R. §§ 1201.151(a)(1),
1201.154(b)(2); 29 C.F.R. § 1614.302(d)(1)(i). In Wilson, 2022 MSPB 7, ¶ 19,
which was issued after the initial decision in this case, the Board held that if an
appealable action is taken under 38 U.S.C. § 714 against a “covered individual,”
like the appellant, and such individual has first filed a formal discrimination
complaint with the agency from such action, the time limit at 5 U.S.C.
§ 7702(e)(2) applies to any Board appeal if the agency has not issued a decision
within 120 days.
Here, the appellant filed a formal discrimination complaint with the agency
on October 10, 2018, before he filed his December 3, 2018 Board appeal. IAF,
Tab 1 at 16, 22. Thus, he elected to first proceed through the EEO complaint
process before exercising his right to file a Board appeal, and the procedures and
time limits of 5 U.S.C. § 7702(e)(2) and 5 C.F.R. § 1201.154(a)-(b) apply in this
case. See Wilson, 2022 MSPB 7, ¶ 25; see also Lang v. Merit Systems Protection
Board, 219 F.3d 1345, 1347 (Fed. Cir. 2000); Augustine v. Department of Justice ,
100 M.S.P.R. 156, ¶ 7 (2005).
Under 5 C.F.R. § 1201.154(b)(2), if an appellant has timely filed a formal
complaint of discrimination with his agency, and the agency has not resolved the
matter or issued a final decision on the formal complaint with 120 days, he may
appeal the matter directly to the Board at any time after the expiration of
120 calendar days. An appeal that would initially be considered prematurely filed7
before the 120-day mark may later be found by the Board to be timely filed upon
the expiration of the 120 days. Augustine, 100 M.S.P.R. 156, ¶¶ 9, 11; see
5 C.F.R. § 1201.154(c); see also Wooten v. Department of Veterans Affairs,
96 M.S.P.R. 671, ¶ 9 (2004) (“The Board’s practice is to adjudicate an appeal that
was premature when filed but becomes timely while pending before the Board.”).
There is no indication that the agency dismissed the appellant’s complaint
of discrimination as untimely filed. Rather, the agency accepted it for
investigation. IAF, Tab 1 at 16. In any event, it appears that the appellant timely
filed his formal complaint of discrimination within 15 days of receiving notice of
his right to do so. See 29 C.F.R. § 1614.106(b); IAF, Tab 1 at 16. 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); Green v. Department of the
Interior, 72 M.S.P.R. 667, 671 (1996); see also Moore v. U.S. Postal Service ,
91 M.S.P.R. 277, ¶ 8 (2002) (holding that the Board may not dismiss an appeal as
untimely filed under section 1201.154 based on the untimeliness of a formal EEO
complaint absent evidence of either a final agency decision dismissing the EEO
complaint as untimely that was not appealed to the Equal Employment
Opportunity Commission (EEOC), or a decision by the EEOC dismissing the
complaint as untimely).
Having found that the appellant timely filed a formal discrimination
complaint with the agency, his Board appeal, in turn, was filed before 120 days
elapsed from the date he filed his discrimination complaint.5 Under these
circumstances, the appeal should have been dismissed without prejudice as
prematurely filed. See Williams v. Department of the Army , 59 M.S.P.R. 477,
479-80 (1993). Because the 120-day period has now elapsed, however, and there
is no indication that the agency has issued a final decision on the appellant’s
5 As set forth above, although the administrative judge ordered the agency to submit
information regarding the status of any formal discrimination complaint filed by the
appellant and any evidence regarding the timeliness issue, it did not do so. 8
formal discrimination complaint, we find that the appeal is currently ripe for
adjudication and that remand is appropriate. See Williams, 59 M.S.P.R. at 480;
see also Kozak v. Department of Health and Human Services , 90 M.S.P.R. 398,
¶ 7 (2001); Johnson v. U.S. Postal Service , 76 M.S.P.R. 289, 292 (1997);
Shalwala v. Small Business Administration , 70 M.S.P.R. 168, 171 (1996). On
remand, therefore, the administrative judge shall adjudicate the merits of the
appeal.
After the agency removed the appellant, the Board and the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) issued decisions interpreting the
VA Accountability Act. For example, the court determined that although the
Board reviews the agency’s action to determine if it is supported by substantial
evidence pursuant to 5 U.S.C. § 714(d), the deciding official must determine
whether the agency proved the misconduct underlying its action by preponderant
evidence. Rodgriguez v. Department of Veterans Affairs , 8 F.4th 1290,
1296-1301 (Fed. Cir. 2021). The Board reviews an agency’s improper application
of the substantial evidence standard to determine if the error was harmful.
Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 21-24.
As another example, the court and the Board have both held that although
the Board cannot mitigate the penalty pursuant to 38 U.S.C. § 714(d), it still
reviews the penalty to determine whether the agency proved by substantial
evidence that the deciding official properly considered the relevant factors under
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), and whether
the agency’s penalty was reasonable, Rodriguez, 8 F.4th at 1301-03; Semenov,
2023 MSPB 16, ¶¶ 45-50. If not, the Board will remand the appellant’s removal
to the agency for a new decision. Semenov, 2023 MSPB 16, ¶ 50.
This case law applies to this appeal. See id., ¶ 22 (finding that the holding
in Rodriguez applies to all pending cases, regardless of when the events at issue
took place). However, it was issued after the February 28, 2019 initial decision.
Further, the focus of the case below was on the timeliness issue. IAF, Tab 3.9
Therefore, on remand the administrative judge should provide the parties with an
opportunity to conduct discovery regarding the merits of the appeal, including
any potential harmful error or penalty issues, before holding the appellant’s
requested hearing. IAF, Tab 1 at 1.
ORDER
For the above reasons, 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.10 | Wilson_Randall_E_CH-0714-19-0113-I-1__Remand_Order.pdf | 2024-07-18 | RANDALL E. WILSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-19-0113-I-1, July 18, 2024 | CH-0714-19-0113-I-1 | NP |
929 | https://www.mspb.gov/decisions/nonprecedential/Borges-Borges_Nelson_AT-0752-21-0178-I-4__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NELSON BORGES-BORGES,
Appellant,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Agency.DOCKET NUMBER
AT-0752-21-0178-I-4
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael S. Corona , Esquire, Trujillo Alto, Puerto Rico, for the appellant.
Anabia Hasan , Esquire, Lindsay Sfekas , Esquire, and
Maneesh Varma , 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 disagrees with the
administrative judge’s determination that the agency proved one of 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).
specifications of its charge but does not challenge the administrative judge’s
determination that the agency proved the other specification. He disputes the
finding that the penalty of removal was within the bounds of reasonableness. He
also argues that the administrative judge abused his discretion by exhibiting bias
and allowing hearsay testimony. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Borges-Borges_Nelson_AT-0752-21-0178-I-4__Final_Order.pdf | 2024-07-18 | null | AT-0752-21-0178-I-4 | NP |
930 | https://www.mspb.gov/decisions/nonprecedential/Ford_Bettie_M_DC-0831-16-0647-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETTIE M. FORD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-16-0647-B-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Oscar Ford , Bryans Road, Maryland, 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
affirmed the final decision of the Office of Personnel Management (OPM)
denying her request for a full Civil Service Retirement System survivor annuity.
On petition for review, the appellant argues that she requires the original Standard
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Form 2801-2 (SF-2801-2), which OPM did not provide, for an analysis of the
signature by a handwriting expert. She indicates that only a handwriting expert
can determine whether the signature on the SF-2801-2 is valid. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Ford_Bettie_M_DC-0831-16-0647-B-1__Final_Order.pdf | 2024-07-18 | BETTIE M. FORD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-16-0647-B-1, July 18, 2024 | DC-0831-16-0647-B-1 | NP |
931 | https://www.mspb.gov/decisions/nonprecedential/Hall_Timothy_H_SF-831E-19-0729-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY H. HALL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-831E-19-0729-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy H. Hall , Stockton, California, pro se.
Trina Janifer , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Civil Service Retirement System (CSRS) disability retirement
appeal for lack of jurisdiction. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of 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 record in this appeal is sparse. However, based on the parties’
pleadings and the extant documentary evidence, the following facts appear to be
true. The appellant was employed with the Department of the Navy and covered
under CSRS. Initial Appeal File (IAF), Tab 3 at 2, Tab 9 at 8. He sustained a
compensable injury and, in 1986, began receiving workers’ compensation
benefits.2 IAF, Tab 3 at 2. The appellant remains on the workers’ compensation
rolls, but the record does not reflect whether or when he was ever separated from
service. Id.
At some point, the appellant filed an application for disability retirement,
but on December 19, 1991, OPM issued a final decision denying the application
on the basis that the appellant lacked 5 years of creditable service. IAF, Tab 9
at 8. The appellant filed a Board appeal, and on March 4, 1992, the
administrative judge issued an initial decision dismissing the appeal as
withdrawn. Hall v. Office of Personnel Management , MSPB Docket No.
2 It would appear that the Office of Workers’ Compensation Programs found the
appellant to be totally disabled, but the record is not clear on this point.2
SF-831E-92-0412-I-1, Initial Decision (0412 ID) at 1-2 (Mar. 4, 1992); IAF,
Tab 9 at 11-12. It appears that the appellant appealed to the U.S. Court of
Appeals for the Federal Circuit, but the record does not reflect the disposition of
that action. IAF, Tab 9 at 7.
On July 15, 2010, the appellant again contacted OPM concerning his
disability retirement. Id. OPM issued a reply letter dated September 20, 2012,
notifying the appellant that “all due process [had] been exhausted” with regard to
his disability retirement claim, and that any further inquiries must be directed to
the Board. Id. The appellant claims not to have received this letter until he
contacted OPM again some 7 years later. IAF, Tab 3 at 1-2. Specifically, in the
summer of 2019, the appellant contacted OPM to renew his pursuit of disability
retirement benefits. Id. at 1. On August 26, 2019, OPM responded by referring
the appellant to its September 20, 2012 letter. IAF, Tab 1 at 9.
On September 25, 2019, the appellant filed the instant appeal, indicating
that he was appealing a denial of disability retirement benefits dated
September 20, 2012. Id. at 2-3, 12. The administrative judge issued an
acknowledgment order, informing the appellant that the Board may lack
jurisdiction over his appeal if OPM has not issued a final decision. IAF, Tab 2
at 2. The administrative judge also notified the appellant that his appeal appeared
to be untimely, and she apprised him of the Board’s timeliness and good cause
standards. Id. at 3-4. She ordered the parties to file evidence and argument on
these issues. Id. at 2-6. After the parties responded, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction or
alternatively as res judicata. IAF, Tab 10, Initial Decision (ID). She did not
reach the timeliness issue. ID at 10 n.1.
The appellant filed a petition for review, stating that he filed the instant
appeal based on incorrect instructions from OPM, and that he “should be able to
close this appeal” and reapply for disability retirement. Petition for Review
(PFR) File, Tab 1 at 1. The Clerk of the Board issued an order, inquiring whether3
the appellant wished to withdraw his petition for review. PFR File, Tab 3. The
appellant responded that he does not wish to withdraw his petition for review, and
that he only wants to know whether a withdrawal would enable him to file a new
application for disability retirement. PFR File, Tab 4. OPM has not filed a
response.
ANALYSIS
The Board’s jurisdiction to adjudicate CSRS appeals derives from statute:
“[A]n administrative action or order affecting the rights or interests of an
individual or of the United States under this subchapter may be appealed to the
Merit Systems Protection Board under procedures prescribed by the Board.”
5 U.S.C. § 8347(d)(1). For purposes of CSRS disability retirement, the Board has
jurisdiction over final decisions issued by OPM under 5 C.F.R. § 831.109(f). See
Watson v Office of Personnel Management , 50 M.S.P.R. 546, 548 (1991);
5 C.F.R. § 831.110.
In this case, we agree with the administrative judge that OPM’s
September 20, 2012 letter does not constitute an appealable “final decision”
within the meaning of 5 C.F.R. § 831.109(f). ID at 4-5; see Muyco v. Office of
Personnel Management , 104 M.S.P.R. 557, ¶ 11 (2007). It is not styled as such,
it does not purport to constitute a ruling on any application, it contains no
substantive discussion of the appellant’s claim, and it does not contain any notice
of appeal rights. IAF, Tab 9 at 15; cf. 5 C.F.R. § 831.109(c), (f) (setting forth the
requirements for an OPM final decision). Underscoring the fact that the letter
itself does not constitute a final decision is its reference back to the final decision
issued on December 19, 1991. IAF, Tab 9 at 8, 15. For these same reasons, we
find that the August 26, 2019 letter does not constitute an appealable final
decision. IAF, Tab 1 at 9. In light of this determination, we do not reach the
administrative judge’s alternative finding that, if either of these letters constituted4
a new final decision within the Board’s jurisdiction, the appeal would be barred
as res judicata. ID at 5.
However, to the extent that the appellant is attempting to contest OPM’s
December 19, 1991 final decision, we find that this matter is res judicata. Under
the doctrine of res judicata, a valid, final judgment on the merits of an action bars
a second action involving the same parties or their privies based on the same
cause of action. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995).
Res judicata is applicable if: (1) the prior judgment was rendered by a forum
with competent jurisdiction; (2) the prior judgment was a final judgment on the
merits; and (3) the same cause of action and the same parties or their privies were
involved in both cases. Id. We find that all three elements are satisfied with
respect to OPM’s December 19, 1991 denial of the appellant’s disability
retirement application. As the administrative judge in that appeal correctly
found, the Board had jurisdiction under 5 U.S.C. § 8347(d). 0412 ID at 1; IAF,
Tab 9 at 11. The appellant’s withdrawal of that appeal was tantamount to a
judgment on the merits, and the same parties and the same cause of action are at
issue. See Brown v. Department of the Navy , 102 M.S.P.R. 377, ¶ 10 (2006)
(treating a dismissal as withdrawn as a final judgment on the merits for purposes
of res judicata); Frias v. U.S. Postal Service , 63 M.S.P.R. 276, 280, (stating that,
for res judicata purposes, a cause of action is the set of facts which gives an
appellant the right to seek relief from an agency), aff’d, 43 F.3d 1486 (Fed. Cir.
1994) (Table).
Based on his pleadings, it appears that the appellant is not requesting that
the Board reopen his prior appeal. PFR File, Tab 1 at 1. Nor would the Board be
inclined to grant such a request because its authority to reopen an appeal is
limited by the requirement that it be exercised within a reasonable amount of
time, which is generally measured in weeks rather than years. See Lauer v.
Department of Transportation , 65 M.S.P.R. 224, 226 (1994). Not only have more
than 30 years elapsed since the Board issued its final decision, but the appellant5
has not provided any sort of evidence or argument casting doubt on the
correctness of the result. He does, however, appear to allege that circumstances
have changed so that he is now eligible for disability retirement.
In that regard, the appellant states that, regardless of whether he had
5 years of creditable service at the time of his original disability retirement
application, as required under 5 U.S.C. § 8337(a), he now satisfies that
requirement because he has remained on the Federal employment rolls
notwithstanding his receipt of workers’ compensation benefits.3 PFR File, Tab 1
at 1; IAF, Tab 1 at 3, Tab 3 at 2. The record contains insufficient information for
us to make any findings on this matter, and in any event, the authority to make
such determinations in the first instance belongs to OPM and not the Board. See
5 U.S.C. § 8347(b); Lary v. U.S. Postal Service , 108 M.S.P.R. 145, ¶ 7 (2007);
see also 5 U.S.C. § 1205(g) (prohibiting the Board from issuing advisory
opinions). However, because the appellant’s previous disability retirement
application has already been fully adjudicated, OPM will only make a new
determination if the appellant files a new application for disability retirement.
See 5 U.S.C. § 8337(a); Muyco, 104 M.S.P.R. 557, ¶ 11 (2007) (“[O]nce OPM has
previously issued a final decision on an individual’s entitlement to a CSRS
retirement annuity, OPM will not issue another decision unless the individual
submits new evidence that establishes actual entitlement to an annuity.”);
5 C.F.R. § 831.104(a). The appellant is not precluded from filing a new disability
retirement application with OPM based on a change in his eligibility status since
his previous application. See Greenwood v. Office of Personnel Management ,
10 M.S.P.R. 88, 90 (1982). Nevertheless, we express no opinion on whether any
such application would be timely under 5 U.S.C. § 8337(b) and 5 C.F.R.
§ 831.1203(a)(5), or whether the appellant now, in fact, meets the disability
retirement criteria of 5 U.S.C. § 8337(a) and 5 C.F.R. § 831.1203(a).
3 Under 5 U.S.C. § 8332(f), “credit shall be allowed for leaves of absence without pay
granted an employee while performing military service or while receiving [workers’
compensation] benefits under subchapter I of chapter 81 of this title.”6
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.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 | Hall_Timothy_H_SF-831E-19-0729-I-1__Final_Order.pdf | 2024-07-18 | TIMOTHY H. HALL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-831E-19-0729-I-1, July 18, 2024 | SF-831E-19-0729-I-1 | NP |
932 | https://www.mspb.gov/decisions/nonprecedential/Karunakaran_ArthurDA-0845-19-0291-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARTHUR KARUNAKARAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-19-0291-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arthur Karunakaran , Garland, Texas, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of an Office of Personnel Management (OPM)
reconsideration decision for failure to prosecute. For the reasons set forth below,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
On April 19, 2019, the appellant filed a Board appeal challenging an OPM
reconsideration decision finding that he had been overpaid in Federal Employees’
Retirement System retirement benefits. Initial Appeal File (IAF), Tab 1 at 3,
Tab 4 at 6-7. On June 12, 2019, the administrative judge issued an initial
decision dismissing the appeal for failure to prosecute. IAF, Tab 7, Initial
Decision (ID) at 2-3. The initial decision informed the appellant that it would
become final on July 17, 2019, unless a petition for review was filed by that date.
ID at 3.
Nearly 9 months later, on April 16, 2020, the appellant filed a petition for
review of the initial decision. Petition for Review (PFR) File, Tab 1. On May 1,
2020, the Office of the Clerk of the Board informed the appellant that his petition
for review was untimely filed because it was not postmarked or received in its
office on or before July 17, 2019. PFR File, Tab 2 at 2. The Clerk’s Office
afforded the appellant 15 days to file a motion to accept the petition as timely or
waive the time limit for good cause, and provided him with a motion form to
complete. Id. The appellant did not respond. The agency moved to dismiss the
petition for review as untimely filed. PFR File, Tab 4 at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The date of a
filing submitted by mail is determined by the postmark date. 5 C.F.R.
§ 1201.4(l).2
As previously noted, the initial decision provided the appellant with notice
that July 17, 2019, was the last day on which he could file a petition for review
with the Board. ID at 3. The appellant makes no allegation that he did not
receive the initial decision or that he received it more than 5 days after it was
issued. The appellant’s petition for review was postmarked on April 16, 2020;
thus, that is its filing date. PFR File, Tab 1 at 3; see 5 C.F.R. § 1201.4( l).
Therefore, it was filed approximately 9 months late.
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. § 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause for the untimely filing by showing that
he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). To determine whether
a party has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and the party’s showing of due diligence, whether he
is proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition. Palermo, 120 M.S.P.R.
694, ¶ 4; Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Notwithstanding the appellant’s pro se status, we find that he has failed to
show good cause for a waiver of the filing deadline. His nearly 9-month delay in
filing his petition for review is significant. See Wright v. U.S. Postal Service ,
93 M.S.P.R. 444, ¶ 6 (2003) (finding an 8-month filing delay significant).
Moreover, the appellant did not respond to the Office of the Clerk of the Board’s
order to show cause for his untimely filing. To the extent he is alleging that he
exercised due diligence when he reached out to several unidentified3
representatives on or around January 19, 2020, and that his petition for review
was delayed by his financial difficulties, we are not persuaded that such
circumstances excuse his untimely filing. PFR File, Tab 1 at 1-2; see Robinson v.
Office of Personnel Management , 85 M.S.P.R. 589, ¶ 5 (2000) (explaining that
the appellant’s difficulty in obtaining information to support his case and his
asserted financial difficulties did not excuse his untimely filing).
The Board will find good cause for waiver of its filing time limits when a
party demonstrates that he suffered from an illness that affected his ability to file
on time. Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). The
notice from the Clerk’s Office informed the appellant that, to establish that an
untimely filing was the result of an illness, he must: (1) identify the time period
during which he suffered from the illness; (2) submit medical or other evidence
showing that he suffered from the alleged illness during that time period; and
(3) explain how the illness prevented him from timely filing his appeal or his
petition for review. PFR File, Tab 2 at 7 n.1; see Lacy, 78 M.S.P.R. at 437.
Here, the appellant does not attribute the untimeliness of his petition for review to
a medical condition.2 Even if we were to consider such a claim, the appellant
does not satisfy the Lacy standard.
Because the appellant has not shown that he acted with due diligence or
that there were circumstances beyond his control that affected his ability to
timely file his petition for review, we find that he has failed to establish good
cause for his untimely filing of his petition. Accordingly, we dismiss the petition
for review as untimely filed.
2 The appellant asserts that, because he was out of the country and in poor health, he
was unable to “attend court in Dallas.” PFR File, Tab 1 at 1. Such an assertion, which
appears to address the appellant’s failure to participate in the proceedings before the
administrative judge, is not relevant to the timeliness of the petition for review. See
Wright v. Department of the Treasury , 113 M.S.P.R. 124, ¶ 7 (2010) (finding that the
appellant’s assertions regarding the merits of a case do not establish good cause for an
untimely filed petition for review).4
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 underlying appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.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.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. 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 | Karunakaran_ArthurDA-0845-19-0291-I-1__Final_Order.pdf | 2024-07-18 | ARTHUR KARUNAKARAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-19-0291-I-1, July 18, 2024 | DA-0845-19-0291-I-1 | NP |
933 | https://www.mspb.gov/decisions/nonprecedential/Hester_Webster_S_AT-0752-20-0137-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WEBSTER S. HESTER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-20-0137-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tamika Sykes , Esquire, Atlanta, Georgia, for the appellant
Roderick Eves , Saint 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
affirmed his reduction in grade and pay under 5 U.S.C. chapter 75. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
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 below to address an affirmative defense of harmful error or
violation of due process, we AFFIRM the initial decision.
BACKGROUND
In 2018, the appellant became Postmaster at the agency’s Jefferson Post
Office in Gainesville, Georgia. Initial Appeal File (IAF), Tab 6 at 84. On
January 8, 2019, the appellant and his immediate supervisor were attending a
meeting at the Atlanta District Office when the District Human Resources
Manager requested to see the appellant. IAF, Tab 26 at 19. The appellant and his
supervisor met with the Human Resources Manager, who questioned the appellant
about an incident that occurred earlier that day, in which the appellant showed up
unannounced to the nearby Dacula Post Office to confront a Rural Carrier
Associate (RCA) about rumors she had supposedly been spreading about the
appellant’s relationship with a subordinate. IAF, Tab 6 at 46, Tab 26 at 19,
32-33, Tab 27 at 5-6.
In light of this incident and another complaint that management had
recently received about the appellant’s behavior, his supervisor decided to
conduct an investigation. IAF, Tab 26 at 19. On or about January 11, 2019, the
appellant’s supervisor paid a site visit to the Jefferson Post Office, interviewed
“nearly all the employees” there, and received numerous complaints about the2
appellant’s conduct. IAF, Tab 6 at 68-78, Tab 26 at 20. Several of these
employees followed up with written statements. IAF, Tab 6 at 48-67. The
agency interviewed the appellant about these allegations on February 6, 2019. Id.
at 44-45.
Around the time of the initial interviews, the appellant’s supervisor
instructed him not to have any contact with Jefferson Post Office employees.
IAF, Tab 26 at 7. Nevertheless, on April 3, 2019, the appellant texted a meme
about loyalty to the Officer in Charge at the Jefferson Post Office, along with the
statement “[y]ou need to remember this because loyalty is everything.” IAF,
Tab 6 at 81-82. On April 5, 2019, the appellant’s supervisor interviewed him
about this incident as well. Id. at 42-43.
On May 23, 2019, the agency proposed the appellant’s removal based on
three charges: (1) improper conduct (five specifications), (2) lack of candor (one
specification), and (3) failure to follow instructions (one specification). Id.
at 27-31. Charge 1 pertained to the January 8, 2019 incident at the Dacula Post
Office as well as four other incidents in which the appellant allegedly made
inappropriate statements to his subordinates. Id. at 27-28. Charge 2 pertained to
the appellant’s alleged admission that he gave untruthful answers during his
February 6, 2019 interview. Id. at 28. Charge 3 pertained to the appellant’s
alleged violation of the no-contact order by texting the Officer in Charge. Id.
at 28-29. After the appellant responded, the deciding official issued a decision
sustaining all of the charges and specifications, but mitigating the proposed
penalty to a reduction in grade and pay to the position of EAS-17 Supervisor of
Customer Service. Id. at 15-19.
The appellant filed a Board appeal, contesting the charges and the penalty
and raising affirmative defenses of violation of due process and harmful
procedural error. IAF, Tab 1 at 4-6, Tab 14 at 6-8, Tab 17 at 1-6. He originally
requested a hearing in his appeal, but he later withdrew that request, and the
appeal was decided on the written record. IAF, Tab 1 at 2, Tabs 24-25.3
After the record closed, the administrative judge issued an initial decision
affirming the agency’s action. IAF, Tab 31, Initial Decision (ID). She sustained
all three charges and their underlying specifications, found that the agency
established a nexus between the appellant’s misconduct and the efficiency of the
service, and upheld the agency’s penalty determination. ID at 3-15. The
administrative judge further found that the appellant failed to prove his
affirmative defenses. ID at 15-18.
The appellant has filed a petition for review, contesting charges 1 and 2
and arguing that the administrative judge failed to consider all of the relevant
evidence in arriving at her decision. Petition for Review (PFR) File, Tab 3. The
agency has filed a response. PFR File, Tab 5.
ANALYSIS
In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency
bears the burden of proving by preponderant evidence that its action was taken
for such cause as would promote the efficiency of the service. MacDonald v.
Department of the Navy , 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)
(ii). To meet this burden, the agency must prove its charge, establish a nexus
between the charge and the efficiency of the service, and demonstrate that the
penalty imposed was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144,
1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the
action may not be sustained if the appellant shows that it was the product of a due
process violation or harmful procedural error. 5 U.S.C. § 7701(c)(2)(A); Stephen
v. Department of the Air Force , 47 M.S.P.R. 672, 681 (1991); see 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
In this case, the appellant’s petition for review is directed toward the
administrative judge’s findings on charges 1 and 2. He does not directly contest
her findings on penalty, but the implication of his petition is that the penalty
should be mitigated if fewer than all charges are sustained. See Douglas v.4
Veterans Administration , 5 M.S.P.R. 280, 308 (1981) (stating that, when not all
of the charges are sustained, the Board will consider carefully whether the
sustained charges merited the penalty imposed by the agency). The appellant
does not challenge the findings that the administrative judge made on his
affirmative defenses. These findings appear to be correct on their face, and we
will not revisit them on review. ID at 12, 15-18; see 5 C.F.R. § 1201.115 (stating
that the Board normally will consider only issues raised in a timely filed petition
or cross petition for review). Nevertheless, the appellant raises a due process
argument or harmful error defense in connection with charge 2 that the
administrative judge did not address in her initial decision, and which we must
therefore address on review.
Charge 1: Improper Conduct
A charge of “improper conduct” has no specific elements of proof; it is
established by proving that the appellant committed the acts alleged in support of
the “improper conduct” label. 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). In this case, the agency charged the appellant
with five specifications of improper conduct related to his interactions with craft
employees.
Under specification 1, the agency alleged as follows: “On January 8, 2019,
you went to the Dacula Post Office to confront an employee [an RCA] about
statements you alleged she made about you and one of your female employees.”
IAF, Tab 6 at 27. The administrative judge sustained this specification, finding
that the appellant admitted that he went to this other facility, which was not under
his authority, to confront the RCA about rumors that she was supposedly
spreading concerning the appellant’s relationship with a female subordinate. ID
at 3-5. On petition for review, the appellant argues that the agency failed to
identify any law, rule, or regulation prohibiting his actions. PFR File, Tab 3 at 6.
He points out that he left the premises once the Dacula Postmaster informed him5
that the RCA declined to speak with him. Id. The appellant also disputes the
allegation in the notice of proposed removal that he was angry and the RCA was
afraid of him. Id. at 6-7.
Not all misconduct for which disciplinary action may be taken is
specifically prohibited by statute or regulation. Hatch v. Department of the Air
Force, 40 M.S.P.R. 260, 266 (1989). We agree with the administrative judge that
it was inappropriate for the appellant to travel unannounced to another Post
Office in order to confront a craft employee about a matter that should have been
addressed in an orderly fashion through the proper chain of command. This
behavior was unprofessional and inherently disruptive to the agency’s operations.
Regardless of whether the appellant was visibly angry, whether he left after the
RCA declined to speak with him, or whether the RCA was afraid of him, we find
that his actions were still improper.
Under specification 2, the agency alleged that, on February 5, 2019, the
appellant told a subordinate Sales Services and Distribution Associate that he
would “mentally and physically kick [her] ass.” IAF, Tab 6 at 27. Specifications
3 through 5 five pertained to similar hostile and profane statements that the
appellant allegedly made to three other female subordinates. Id. The
administrative judge sustained all of these specifications, finding that the
evidence that the agency proffered in support was more credible than the
appellant’s denials. ID at 5-9. On petition for review, the appellant argues that
the administrative judge should not have sustained specification 2 because the
agency was unable to prove that the conduct at issue occurred on February 5,
2019, as alleged. PFR File, Tab 3 at 7. He argues more generally that the
administrative judge sustained specifications 2 through 5 based on faulty
credibility determinations that she made without considering all of the relevant
evidence. Id. at 9-11.
Regarding the specific date of the misconduct at issue in specification 2,
the date given in the proposal notice is obviously incorrect. February 5, 2019 was6
the date of the email in which the appellant’s subordinate set forth her
allegations, not the date that she alleged the underlying misconduct took place.
IAF, Tab 6 at 27, 52. Nevertheless, it is well settled that an agency is required to
prove only the essence of its charge and need not prove each factual specification
supporting the charge. Hicks v. Department of the Treasury , 62 M.S.P.R. 71, 74
(1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995) (Table). The Board has held that a
mistake in stating the date of an incident of misconduct, absent a showing by the
appellant that the misstatement constituted harmful procedural error, does not
invalidate the charge. Walcott v. U.S. Postal Service , 52 M.S.P.R. 277, 282
(1992); see Hartigan v. Veterans Administration , 39 M.S.P.R. 613, 617-18
(1989). We therefore agree with the administrative judge that the agency was not
required to prove the specific date of the alleged misconduct underlying
specification 2. ID at 9 n.3.
Regarding the administrative judge’s credibility determinations, when, as
here, an administrative judge’s findings are not based on the observation of
witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its
own judgment on credibility issues.2 Haebe v. Department of Justice , 288 F.3d
1288, 1302 (Fed. Cir. 2002). In this case, the agency supported the specific
allegations set forth in specifications 2 through 5 with declarations, emails, and
unsworn written statements by various employees. IAF, Tab 6 at 49, 52, 55, 62,
Tab 26 at 35-43. The agency also submitted a large number of written statements
and notes from interviews with various Jefferson Post Office employees,
generally characterizing the appellant’s managerial style as harsh, intimidating,
and profane. IAF, Tab 6 at 48-78. In rebuttal, the appellant filed a declaration
and a copy of his responses to the investigation in which he specifically denied
the agency’s allegations, as well as multiple declarations and unsworn written
2 Although we reconsider the relevant evidence here, we note that the administrative
judge’s failure to mention all of the evidence of record does not mean that she did not
consider it in reaching her decision. See Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984 ), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). 7
statements from various individuals expressing approval of the appellant’s
managerial style and stating that his detractors conspired to have him removed
through false allegations.3 IAF, Tab 14 at 24, 37-49, Tab 27 at 26-28, Tab 29
at 22-49.
We find that there is nothing internally contradictory or inherently
implausible about either the agency’s direct evidence in support of specifications
2-5 or the appellant’s denials. IAF, Tab 6 at 49, 52, 55, 64, 72, 78, Tab 26
at 36-37, 40, 43, Tab 29 at 28-30. We note, however, that the agency failed to
support specification 4 with a sworn statement. We find that the interview notes
and unsworn written statement that the agency submitted in support of
specification 4 are of reduced evidentiary value compared to the appellant’s
sworn denial of the same, but that the direct evidence, on the whole, is
inconclusive. IAF, Tab 6 at 54-55, 78, Tab 29 at 29; see Social Security
Administration v. Whittlesey , 59 M.S.P.R. 684, 692 (1993) (stating that a sworn
statement has greater weight than one that is unsworn), aff’d, 39 F.3d 1197 (Fed.
Cir. 1994) (Table). We agree with the administrative judge that there is scant
evidence that any of these four employees had motive to fabricate their
allegations.4 ID at 8; see Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987) (stating that, to resolve credibility issues, the Board will consider, among
other things, a witness’s bias or lack of bias).
3 The appellant also submitted evidence related to the Dacula Postmaster’s version of
events regarding charge 1, specification 1. IAF, Tab 27 at 20, Tab 29 at 17-21. We
find that this evidence is immaterial because, as explained above, the undisputed facts
are sufficient to support that specification.
4 As explained below, two of the appellant’s witnesses opined that the Jefferson Post
Office turned against the appellant because the employees there were not used to being
held accountable and simply did not like being told what to do. However, holding
subordinates accountable and directing their performance is a common task among all
supervisors in the Civil Service. We find it unlikely that four of the appellant’s
subordinates would feel sufficiently motivated by this normal working relationship to
make false allegations against the appellant, and that three of the four would be willing
to do so under penalty of perjury.8
Regarding the circumstantial evidence, out of the 21 Jefferson Post Office
employees whom the appellant’s supervisor interviewed in January 2019, 17
expressed a negative opinion of the appellant’s managerial practices, 3 expressed
a positive opinion, and 1 declined to answer. IAF, Tab 6 at 68-78. The
complaints about the appellant were remarkably consistent among these
employees, with several recurring themes, including that the appellant managed
the Post Office with intimidation and bullying tactics, that he was disrespectful,
unprofessional, used inappropriate language, and denigrated his subordinates in
front of each other, that he fostered a climate of fear which made employees
reluctant to speak out due to the possibility of retaliation, and that he played
favorites among his subordinates, with RCA 1, a subordinate with whom the
appellant was alleged to have an inappropriate personal relationship, being
especially favored. Id. at 48-78. Although these statements are unsworn, we
agree with the administrative judge that the complaints therein are characteristic
of the misconduct alleged in charge 1, specifications 2 through 5. ID at 8. These
unsworn statements are also consistent with the sworn statements that the agency
submitted in support of its charge. IAF, Tab 26 at 35-43.
We have also considered the circumstantial evidence weighing in the
appellant’s favor. This includes statements from five other agency employees
with whom the appellant has worked at other facilities, as well as the three
positive opinions of the appellant’s managerial practices gathered by the
appellant’s supervisor during his site visit. We acknowledge that the five
statements that the appellant submitted for the record express a favorable view of
his managerial style, and that four of these statements were made under the
penalty of perjury. IAF, Tab 29 at 40-49. However, we do not find these
statements particularly persuasive because none of these individuals worked
under the appellant at the Jefferson Post Office during the time period in
question. See Hillen, 35 M.S.P.R. at 458 (stating that, to resolve credibility
issues, the Board will consider, among other things, the witness’s opportunity and9
capacity to observe the event or act in question). As to the three favorable
statements that the appellant’s supervisor collected during his site visit, one was
somewhat equivocal and not necessarily inconsistent with the negative
statements; this employee acknowledged that the appellant was “rough around the
edges,” but offered that he believed that the appellant was basically doing a good
job and that his colleagues were being “too sensitive.” IAF, Tab 6 at 74.
Therefore, although this statement is generally positive, we do not find that it
weighs heavily in the appellant’s favor. Another one of the positive statements
was offered by RCA 1, who stated that the appellant treated his subordinates
fairly and that they just did not like being held to account. Id. at 57-58, 71.
However, based on the large number of consistent statements that the appellant
favored RCA 1 over the rest of his subordinates, id. at 48-50, 54-56, 59, 61-63,
65-66, 68, 70-77, we find that the appellant more probably than not showed
favoritism to RCA 1, and that her unsworn statements to the contrary are
therefore entitled to little weight, see Hillen, 35 M.S.P.R. at 458 (reflecting that
to resolve credibility issues, the Board will consider, among other things, a
witness’s bias or lack of bias).
The most persuasive circumstantial evidence in the appellant’s favor was
from a Mail Processing Clerk, who, like RCA 1, stated that the appellant did not
show favoritism and his subordinates merely resented being told what to do. IAF,
Tab 6 at 74, Tab 27 at 23-25. However, unlike RCA 1, there is no evidence that
this Mail Processing Clerk was biased in the appellant’s favor, and she supported
her unsworn statements with a declaration under the penalty of perjury. IAF,
Tab 29 at 22-25. The Mail Processing Clerk also stated that she overheard three
or four employees discuss the need to “keep their stories straight” in order to get
the appellant out of the office. IAF, Tab 27 at 22, 24. Although we find little
reason to doubt the facts that this Mail Processing Clerk reported or the
earnestness of her opinions, we find that her statements are insufficient to
outweigh the statements of the other employees. First, we note that her opinion10
of the appellant’s managerial style is inconsistent with the opinions of practically
all the other employees at the Jefferson Post Office. See Hillen, 35 M.S.P.R.
at 458 (stating that, to resolve credibility issues, the Board will consider, among
other things, the contradiction of the witness’s version of events by other
evidence or its consistency with other evidence). Second, even if 3 or 4 of the
appellant’s subordinates attempted to coordinate their accounts of the appellant’s
misconduct, this does not explain the similar opinions expressed by 14 other
Jefferson Post Office employees. Nor would it appear that there would have been
much opportunity for these individuals to collude in advance of the January 2019
interviews. Therefore, although the Mail Processing Clerk’s statements have
some persuasive value, we find that the weight of the evidence supports the
agency’s allegation that the misconduct alleged in charge 1, specifications 2
through 5 was characteristic of the appellant’s profane, intimidating, and
unprofessional style of management.
Further supporting our findings are the appellant’s actions with respect to
charge 1, specification 1, which, as explained above, are not in material dispute.
This incident provides additional confirmation of the appellant’s pattern of
overbearing and unprofessional behavior, as well as his tendency to turn his
dissatisfaction with craft employees into a personal matter. For these reasons,
having weighed the evidence as a whole, both for and against the agency’s
version of events, we agree with the administrative judge that the agency proved
charge 1, specifications 2 through 5.
Charge 2: Lack of Candor
Lack of candor requires proof that: (1) the employee gave incorrect or
incomplete information; and (2) he did so knowingly. Fargnoli v. Department of
Commerce, 123 M.S.P.R. 330, ¶ 17 (2016). Although lack of candor is
distinguishable from falsification because it does not require a showing of an
“intent to deceive,” it nonetheless requires that the employee conveyed
information knowing that it was incorrect or incomplete. Parkinson v.11
Department of Justice , 815 F.3d 757, 765-66 (Fed. Cir. 2016), aff’d in part and
rev’d in part, 874 F.3d 710 (Fed. Cir. 2017) (en banc).
In support of its lack of candor charge, the agency stated that, the week
following his February 6, 2019 interview, the appellant stated to his supervisor “I
want to be straight up with you. I just want you to know I lied to most of the
questions you asked me.” When his supervisor asked for an explanation, the
appellant “became noticeably upset and began to say, ‘I did not tell you I lied. It
was your question . . . ,’” but he failed to complete his thought. IAF, Tab 6 at 28.
The administrative judge sustained this charge based on the appellant’s interview
answers in which he denied committing the misconduct under charge 1,
specifications 2 through 5. ID at 10-11; IAF, Tab 6 at 44-45.
On petition for review, the appellant argues that he could not have admitted
lack of candor to his supervisor the week after the February 6, 2019 interview
because he was out of state on vacation at that time. PFR File, Tab 3 at 7-8. We
find that even if we discount the appellant’s alleged admission, the agency proved
its lack of candor charge. We agree with the administrative judge that it was
sufficient for the agency to show that the appellant denied committing misconduct
that was proven to have occurred. ID at 10-11; see Little v. Department of
Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (citing Boyd v. Department of
Justice, 14 M.S.P.R. 427, 428-30 (1983), for the principle that when an agency
proves an appellant’s underlying misconduct it also proves that he lacked candor
when he failed to provide truthful or complete information when questioned about
that misconduct).
Charge 3: Failure to Follow Instructions
To prove a charge of failure to follow instructions, an agency must
establish that the appellant: (1) was given proper instructions, and (2) failed to
follow the instructions, without regard to whether the failure was intentional or
unintentional. Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 5 (2014). In this
case, the agency alleged that, on January 11, 2019, the appellant was given12
explicit instructions not to contact anyone at the Jefferson Post Office, and that
the appellant violated these instructions on April 3, 2019, when he sent a text
message to the Officer in Charge, exhorting him to remain loyal. IAF, Tab 6
at 29-30. The administrative judge sustained this charge, and the appellant does
not challenge the administrative judge’s finding on review. ID at 31. For the
reasons explained in the initial decision, we agree with the administrative judge
that the agency proved charge 3.
We modify the initial decision to find that the appellant did not prove the agency
denied him due process or committed harmful procedural error.
As to the lack of candor charge, the appellant also argues that the agency
failed to identify with specificity the interview answers that it was alleging were
inaccurate. PFR File, Tab 3 at 8. We construe this as an affirmative defense of
violation of due process. See Howarth v. U.S. Postal Service , 77 M.S.P.R. 1, 3-4
(1997) (stating that due process entails advance notice of an adverse action, with
sufficient detail to allow the employee to make an informed reply). The appellant
raised this issue below, but the administrative judge did not specifically address
it. IAF, Tab 27 at 13. We will therefore address it here.
We agree with the appellant that charge 2, itself, does not specifically list
the allegedly inaccurate interview answers. However, we find that the essence of
charge 2 is readily ascertainable by reading the proposal notice and supporting
documents as a whole. See Allen v. U.S. Postal Service , 466 F.3d 1065, 1070
(Fed. Cir. 2006) (explaining that “charged offenses are to be gleaned from the
Notice of Proposed Removal as a whole”); Coppola v. U.S. Postal Service ,
47 M.S.P.R. 307, 312 (1991) (finding that the notice of proposed removal,
together with the evidence available for the appellant’s examination, was
sufficient to notify the appellant of the nature of the charges against him).
Specifically, charge 2 refers to untruthful statements that the appellant made
during his February 6, 2019 interview. IAF, Tab 6 at 28. The notes from that
interview, which were only two pages long and available for the appellant’s13
review, show that the appellant denied committing the misconduct alleged under
charge 1, specifications 2 through 5. Id. at 31, 44-45. These are obviously the
interview answers to which the agency was referring in charge 2, and the
appellant posits no alternative interpretation of the charge. Id. at 44-45.
Furthermore, the notice of proposed removal specifically informed the appellant
that, if he did not understand the reasons for the proposal, he should contact his
supervisor, the proposing official. Id. at 31. There is no evidence that the
appellant did so.5 For these reasons, we find insufficient evidence to show that
the appellant reasonably failed to understand the nature of charge 2 so that he was
unable to make a meaningful reply.6
Penalty
Because all the agency’s charges are sustained, the Board’s authority to
review the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R.
253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only
to determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas,
5 M.S.P.R. at 306. In determining whether the selected penalty is reasonable, the
5 To determine whether an employee actually failed to understand the charges against
him, the Board will consider, among other things, his reply to the notice of proposed
removal. See Hunger v. Department of the Interior , 2 M.S.P.R. 107, 108 (1980 ), aff’d
sub nom. Colhoff v. Department of the Interior , 641 F.2d 608 (8th Cir. 1981). In this
case, it appears that the appellant only replied orally, and there is no relevant evidence
of what he said during his reply. IAF, Tab 6 at 15. Because the appellant bears the
burden of proving his affirmative defenses, the absence of relevant evidence on this
point, if anything, tends to cut slightly against the appellant’s case. See Miller v.
Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016 ); 5 C.F.R. § 1201.56(b)(2)
(i)(C).
6 We have also considered the appellant’s argument as an affirmative defense of
harmful procedural error. However, as explained above, this charge is established
based on the discrepancies between the appellant’s interview statements and the proven
misconduct in charge 1, specifications 2 through 5. Therefore, we do not find that the
appellant has shown that any defect in the notice of proposed removal likely had an
effect on the outcome regarding this charge. See Williams v. U.S. Postal Service ,
68 M.S.P.R. 150, 153-54 (1995 ).14
Board gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency, recognizing that the
Board’s function is not to displace management’s responsibility but to assure that
managerial judgment has been properly exercised. Id. at 302. Thus, the Board
will disturb an agency’s chosen penalty only if it finds that the agency failed to
weigh relevant factors or that the agency’s judgment clearly exceeded the limits
of reasonableness. Id. at 306.
In this case, the administrative judge considered the deciding official’s
declaration and Douglas factors worksheet and concluded that she appropriately
considered the relevant factors in arriving at her decision. ID at 13-15; IAF,
Tab 3 at 23-26, Tab 26 at 28-30. The administrative judge further found that the
deciding official’s ultimate determination to reduce the appellant in grade and pay
was reasonable. ID at 14-15. The appellant does not directly challenge the
administrative judge’s findings in this regard, and we see no reason to disturb
them. See Holliman v. U.S. Postal Service , 75 M.S.P.R. 372 (1997) (finding a
four-grade demotion and reassignment to be an appropriate penalty for a
Postmaster who engaged in continuing inappropriate behavior involving
confrontations with outside contractors and agency employees); Kirkpatrick v.
U.S. Postal Service , 74 M.S.P.R. 583, 590 (1997) (stating that supervisors are
held to a higher standard of conduct than other employees).15
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.16
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any17
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s18
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Hester_Webster_S_AT-0752-20-0137-I-1__Final_Order.pdf | 2024-07-18 | WEBSTER S. HESTER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-20-0137-I-1, July 18, 2024 | AT-0752-20-0137-I-1 | NP |
934 | https://www.mspb.gov/decisions/nonprecedential/Lubert_Debra_J_PH-3443-19-0069-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBRA J. LUBERT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
PH-3443-19-0069-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Debra J. Lubert , Northumberland, Pennsylvania, pro se.
Lori A. Markle , Esquire, and Roderick Eves , St. Louis, Missouri,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her retirement benefits appeal for lack of jurisdiction. For the reasons
set forth below, the appellant’s petition for review is DISMISSED as untimely
filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On November 27, 2018, the appellant filed a Board appeal indicating that
she had “purchased [her] military time in 2008” but was not given credit for this
time for purposes of her retirement benefits under the Federal Employees’
Retirement System (FERS). Initial Appeal File (IAF), Tab 1 at 3. The appellant
requested a hearing on the matter. Id. at 2. Without holding the appellant’s
requested hearing, the administrative judge issued a February 14, 2019 initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial
Decision (ID) at 1, 4. In so doing, the administrative judge found, among other
things, that the agency, the appellant’s former employer, was not a proper party to
the appeal. ID at 4. The administrative judge notified the appellant that the
initial decision would become final on March 21, 2019, unless a petition for
review was filed by that date. ID at 5.
On February 13, 2020, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. In her petition, the appellant states that she is making
“a sympathetic plea . . . asking for review due to family medical emergency
problems.” Id. at 3. She also avers that she “did not receive emails as stated
from the agency.” Id. The appellant also provides documentary evidence, the
majority of which was not included in the record before the administrative judge.
Id. at 5-17.
The Office of the Clerk of the Board notified the appellant that her petition
for review was untimely and explained that she must file a motion asking the
Board to accept the petition for review as timely and/or to waive the time limit
for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond. The
agency has responded to the appellant’s petition for review, arguing that it is
untimely filed and that she has not shown good cause for her untimeliness. PFR
File, Tab 3 at 4-6. 2
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on February 14, 2019, and served on the appellant via email the same
day. IAF, Tab 12 at 1. The appellant does not allege that she did not receive the
initial decision within 5 days of its issuance. Accordingly, her petition for review
is untimely by approximately 11 months. PFR File, Tab 1; see 5 C.F.R.
§ 1201.114(e).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to her inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.
Cir. 2007).
We find that the appellant has not demonstrated good cause for the
untimely filing of her petition for review. Although the appellant is pro se, her
11-month delay in filing is significant, and she failed to respond to the notice
affording her the opportunity to file a motion to accept the filing as timely and/or
to waive the time limit for good cause. See Groesbeck v. Office of Personnel
Management, 109 M.S.P.R. 1, ¶ 4 (2008) (finding that the appellant failed to3
show good cause when her petition for review was untimely filed by 6 months
and she failed to respond to the notice regarding timeliness); see also
Trachtenberg v. Department of Defense , 104 M.S.P.R. 640, ¶ 9 (2007) (stating
that a delay of 9 months is not minimal).
In her petition for review, the appellant asserts that family medical issues
contributed to her filing delay; however, this assertion does not establish good
cause. PFR File, Tab 1 at 3; see Minor v. Department of the Air Force ,
109 M.S.P.R. 692, ¶¶ 5, 7 (2008) (finding that personal difficulties, including ill
family members, did not constitute good cause for a filing delay in the absence of
a specific showing of how they affected the appellant’s ability to timely file a
petition or a request for an extension of time). The appellant also contends that
she “purchased [her] military time and did not receive proper [retirement] credit;”
however, this merit-based contention does not constitute good cause for her
untimeliness. PFR File, Tab 1 at 3; see Guevara v. Department of the Navy ,
112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant failed to establish good
cause for his untimely filed petition for review when he merely argued the merits
of his Board appeal).
The appellant also provides numerous documents, including emails, with
her petition for review. PFR File, Tab 1 at 5-17. However, all of the documents
seemingly predate the initial decision, and apart from a vague assertion that she
“did not receive” certain emails due to “poor communications,” id. at 3, she does
not allege, and nothing in her petition for review suggests, that the documents
constitute new evidence that was unavailable to her prior to the close of the
record, see Agbenyeke v. Department of Justice , 111 M.S.P.R. 140, ¶ 12 (2009)
(explaining that the discovery of new evidence may establish good cause for the
untimely filing of a petition for review if, among other things, the evidence was
not readily available before the close of the record). Indeed, all of the appellant’s
arguments appear to be based on information previously available to her such that
she could have timely filed a petition for review on these bases . See Wilson v.4
General Services Administration , 15 M.S.P.R. 45, 47 (1983) (finding that the
appellant had not shown good cause for his untimeliness because, among other
things, he failed to show that the “new” information on which he relied was
unavailable, despite due diligence, before the record closed).
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 retirement benefits appeal.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 On December 19, 2019, the appellant filed a separate Board appeal alleging that the
Office of Personnel Management (OPM) had failed to give her credit for her military
service for purposes of her retirement under FERS. Lubert v. Office of Personnel
Management, MSPB Docket No. PH-0841-20-0118-I-1, Initial Appeal File (0118 IAF),
Tab 1 at 4-5. Thereafter, on June 5, 2020, OPM issued a redetermination letter, wherein
it recalculated the appellant’s total Federal service and her annuity. 0118 IAF, Tab 10
at 4. Shortly following these recalculations, the appellant withdrew her appeal.
0118 IAF, Tab 11, Initial Decision at 2.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 7
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 | Lubert_Debra_J_PH-3443-19-0069-I-1__Final_Order.pdf | 2024-07-18 | DEBRA J. LUBERT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. PH-3443-19-0069-I-1, July 18, 2024 | PH-3443-19-0069-I-1 | NP |
935 | https://www.mspb.gov/decisions/nonprecedential/Wallace_Melody_A_DA-0752-19-0538-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELODY A. WALLACE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-19-0538-I-1
DATE: July 18, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steve Newman , Esquire, New York, New York, for the appellant.
Nadalynn Hamilton , Esquire, Plano, 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
affirmed her removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was an EAS-17 Supervisor of Customer Services for the
agency’s Trinity River Station in Fort Worth, Texas. Initial Appeal File (IAF),
Tab 5 at 88. On November 27, 2018, the appellant’s supervisor reported some
missing stamp stock to the agency’s Inspector General, and the ensuing
investigation uncovered several irregularities with the most recent stamp and cash
count that the appellant conducted on October 31, 2018. Id. at 77-78. After
further investigation, the agency proposed the appellant’s removal based on one
charge of unacceptable conduct with four specifications, and one charge of
unacceptable performance with two specifications. Id. at 77-81. One
specification of unacceptable performance pertained to the appellant’s failure to
use the proper form when she last changed the Trinity River Station safe
combination. All other specifications pertained to the appellant’s use of a
subordinate’s computer credentials to conduct the stamp and cash count, and her
untruthful indication that this same subordinate had witnessed the count.2 The
2 The agency did not allege that the appellant stole any of the stamp stock or that she
was otherwise directly responsible for its disappearance.2
deciding official sustained both charges and all specifications, removing the
appellant effective September 14, 2019. Id. at 82.
The appellant filed a Board appeal, contesting the merits of the agency’s
action and raising an affirmative defense of violation of due process or harmful
procedural error. IAF, Tab 1, Tab 16, Initial Decision (ID) at 11-14. After a
hearing, the administrative judge issued an initial decision sustaining the
appellant’s removal. ID. She sustained both charges and all the underlying
specifications. ID at 3-11. She further found that the appellant failed to prove
her affirmative defense and that the removal penalty was reasonable. ID at 11-17.
The appellant has filed a petition for review, arguing that the attorney who
represented her below was ineffective. She also disputes the administrative
judge’s findings on two specifications.3 Petition for Review (PFR) File, Tab 1.
The agency has filed a response. PFR File, Tab 3.
ANALYSIS
In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service. MacDonald v. Department
of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 U.S.C. § 1201.56(a)(1)(ii). To meet
this burden, the agency must prove its charge, establish a nexus between the
charge and the efficiency of the service, and demonstrate that the penalty imposed
was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir.
1997). However, even if the agency carries this burden, the removal may not be
sustained if the appellant shows that it was the product of harmful procedural
error or was taken without due process. 5 U.S.C. § 7701(c)(2)(A); Stephen v.
3 It appeared that the appellant’s petition for review might have been missing some
pages. The Office of the Clerk of the Board issued an order notifying the appellant of
the issue and giving her an opportunity to supplement her petition with any pages that
might be missing from the record. Petition for Review File, Tab 6. The appellant did
not respond to the order. 3
Department of the Air Force , 47 M.S.P.R. 672, 681, 680-81 (1991); 5 C.F.R.
§ 1201.56(b)(2)(i)(C).
As explained above, the administrative judge sustained both charges and all
six supporting specifications underlying the appellant’s removal. ID at 5-11. On
petition for review, the appellant challenges only charge 1, specifications 1 and 2.
Because the appellant has not provided a basis to disturb the remaining
specifications, we affirm the initial decision with respect to charge 2 and
charge 1, specifications 3 and 4. See 5 C.F.R. § 1201.115 (“The Board normally
will consider only issues raised in a timely filed petition or cross petition for
review.”). Accordingly, both charges are sustained. See Burroughs v.
Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that, when
more than one event or factual specification supports a single charge, proof of
one or more, but not all, of the supporting specifications is sufficient to sustain
the charge). Nor does the appellant challenge the administrative judge’s findings
on her affirmative defense, and we see no basis to disturb those findings on
review. ID at 11-14.
Under, charge 1, specifications 1 and 2, the agency alleged as follows:
Specification #1 : You failed to comply with postal policy regarding
information security when you obtained the computer access
credentials of another postal employee.
Specification #2 : You misused the computer access of another postal
employee to conduct the Stamp/Cash count for Trinity River Station
on or about October 31, 2018.
IAF, Tab 5 at 77. In sustaining these specifications, the administrative judge
considered the testimony of the appellant’s supervisor, who stated that agency
policy prohibits employees from giving their login and password to anyone for
any reason, and that an employee should not use another employee’s credentials
to justify a stamp and cash count if that employee is not present. ID at 5. She
found the appellant’s supervisor to be a credible witness and his testimony
consistent with the written training materials that the agency submitted for the4
record. Id.; IAF, Tab 5 at 69. The administrative judge further found that the
appellant admitted that she used her subordinate’s computer credentials to access
her subordinate’s drawer and to conduct the stamp and cash count. ID at 5.
On review, the appellant argues that her attorney representative showed
“little or no interest” in mounting a defense in the case, pressuring her to accept a
settlement instead, and submitting no evidence whatsoever for the record. PFR
File, Tab 1 at 2. However, even if the appellant was inadequately represented,
the presence of inadequate counsel is not a basis to reverse an initial decision
because an appellant is responsible for the action or inaction of her chosen
representative. Wynn v. U.S. Postal Service , 115 M.S.P.R. 146, ¶ 7 (2010),
overruled on other grounds by Thurman v. U.S. Postal Service , 2022 MSPB 21,
¶ 17 n.6. In any event, the appellant has not identified any additional evidence
that her attorney should have, but failed to, submit.
The appellant also argues that her supervisor was not “an impartial witness
to events” as the administrative judge found. PFR File, Tab 1 at 2; ID at 5. Her
supervisor was not there for the stamp and cash count, and in fact did not even
begin working at Trinity Station until November 10, 2018, after the stamp and
cash count had already occurred. PFR File, Tab 1 at 2. However, the initial
decision reflects that the administrative judge did not rely on the supervisor’s
testimony to determine what transpired during the stamp and cash count but only
to determine what the agency’s policies and procedures require. ID at 5-7, 10.
Regarding specification 1 in particular, the appellant argues that, although
it is prohibited for an employee to give her login information to others and for
supervisors to request login information from their subordinates, she did neither
of these things. Rather, the appellant’s subordinate volunteered her login
information to the appellant. PFR File, Tab 1 at 2; IAF, Tab 5 at 69. We are not
persuaded by this argument. The training document that the agency submitted is
written from the perspective of the employee whose login information is at stake,
but it takes two people to violate this policy—one to give the login information5
and one to receive it. By accepting and using the login credentials of another
employee, the appellant also violated the policy. We cannot accept the
appellant’s rigid interpretation of the agency’s policy, which is obviously
intended to prevent the sharing of passwords and forestall exactly the sort of
problems and issues of accountability that occurred in the Trinity River Station in
October and November 2018.
Regarding specification 2, the appellant admits that she used her
subordinate’s credentials to conduct the stamp and cash count but argues that she
did so accidentally because she merely forgot to log her subordinate out of the
system before she conducted the count. PFR File, Tab 1 at 2. However, we agree
with the administrative judge that there was no element of intent for this
specification. ID at 3, 5. Therefore, even if the appellant’s use of her
subordinate’s credentials to conduct the stamp and cash count was merely
negligent, the administrative judge properly sustained this specification of
unacceptable conduct. See Fernandez v. Department of Agriculture , 95 M.S.P.R.
63, ¶¶ 2, 7, 10 (2003) (sustaining a charge of “improper conduct” based on
negligence). The issue of intent is, however, relevant to the issue of penalty.
Fernandez, 95 M.S.P.R. 63, ¶¶ 8, 14; see Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305 (1981); see also Russo v. U.S. Postal Service , 284 F.3d 1304,
1309-10 & n.2 (Fed. Cir. 2002) (finding that, when an agency proves a general
charge such as conduct unbecoming, the penalty should reflect only the proven
level of impropriety). Nevertheless, even if the appellant was merely negligent in
failing to log out of her subordinate’s credentials when conducting the stamp and
cash count, the fact remains that this negligence was occasioned by the
appellant’s improper action of logging in with her subordinate’s credentials in the
first place. For the reasons explained in the initial decision, we agree with the
administrative judge that the penalty of removal was within the tolerable limits of
reasonableness. ID at 16-17; see generally Cantu v. Department of the Treasury ,6
88 M.S.P.R. 253, ¶ 4 (2001) (finding that, in cases where all the agency’s charges
are sustained, the Board’s authority to review the penalty is limited).
Accordingly, we affirm the initial decision that upheld the appellant’s
removal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Wallace_Melody_A_DA-0752-19-0538-I-1__Final_Order.pdf | 2024-07-18 | MELODY A. WALLACE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-19-0538-I-1, July 18, 2024 | DA-0752-19-0538-I-1 | NP |
936 | https://www.mspb.gov/decisions/nonprecedential/Baker_Mitzi_G_CH-1221-18-0412-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITZI BAKER,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
CH-1221-18-0412-W-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mitzi Baker , Chicago, Illinois, pro se.
Craig Hundley and Kenneth Bullock , Baltimore, Maryland, 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
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her 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 analysis of the contributing factor criterion as to the appellant’s
whistleblower reprisal claim, we AFFIRM the initial decision.
BACKGROUND
The essential undisputed facts as set forth in the initial decision are as
follows. The appellant has been employed as a Case Manager in the agency’s
National Hearing Center in Chicago, Illinois, since 2010. Initial Appeal File
(IAF), Tab 104, Initial Decision (ID) at 2. On April 17, 2017, the appellant filed
a separate IRA appeal with the Board alleging whistleblower reprisal. Id. While
the April 17, 2017 IRA appeal was pending before the Board, on October 27,
2017, the appellant’s first-level supervisor issued the appellant her 2017 annual
performance appraisal in which she gave the appellant an overall rating of
successful contribution and an average element score of four out of five. Id.
Regarding the particular performance elements, the appellant received a rating of
three for the elements of interpersonal skills and participation and a rating of five
for the elements of demonstrates job knowledge and achieves business results.
Id.2
The appellant filed a Board appeal alleging that her supervisor’s decision to
issue her a rating of three in the participation element constituted reprisal for her
protected activity of filing the prior Board appeal on April 17, 2017. IAF, Tab 1.
After holding a hearing, the administrative judge issued an initial decision,
denying the appellant’s request for corrective action because she failed to prove
by preponderant evidence that her protected activity of filing a Board appeal was
a contributing factor in her supervisor’s decision to issue her a rating of three for
the participation element. ID at 1, 5. In particular, the administrative judge
credited the testimony of the appellant’s first-level supervisor that she was not
aware of the appellant’s prior Board appeal at the time she prepared or issued the
appellant’s 2017 performance appraisal. ID at 6-7. The administrative judge
further found that the appellant’s first-level supervisor did not have constructive
knowledge of the prior Board appeal. ID at 7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.2 The agency has opposed the appellant’s petition and the appellant
has filed a reply. PFR File, Tabs 3, 6.3
2 The appellant has filed a motion for leave to file an additional pleading, namely, an
amicus curiae brief filed by the Office of Special Counsel (OSC) in a separate
appellant’s Board case. Once the record closes on review, however, no additional
evidence or argument will be accepted unless it is new and material as defined in
5 C.F.R. § 1201.115(d), and the party submitting it shows that the evidence or argument
was not readily available before the record closed. 5 C.F.R. § 1201.114(k). 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). Evidence is material when it is of sufficient
weight to warrant a different outcome from that of the initial decision. 5 C.F.R.
§ 1201.115(a)(1). We deny the appellant’s motion because she has not shown that the
underlying information contained in OSC’s brief is new, that she exercised due
diligence to obtain this information, or that it warrants a different outcome in this
appeal.
3 To the extent the appellant raises new allegations of errors by the administrative judge
that were not raised in her petition or addressed by the agency in its response, PFR File,
Tab 6 at 4-6, we have not considered such arguments, see 5 C.F.R. § 1201.114(a)(4)
(stating that a reply to a response to a petition for review is limited to the factual and
legal issues raised by another party in the response to the petition for review; it may not
raise new allegations of error).3
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the appellant did not prove that her
protected activity was a contributing factor in her performance appraisal rating,
but modify her analysis.
To obtain corrective action in an IRA appeal, the appellant must meet her
initial burden of establishing by preponderant evidence that her protected activity
was a contributing factor in the personnel actions in dispute. 5 U.S.C. § 1221(e)
(1); Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 39 (2016). An
appellant’s protected activity 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 an appellant
may establish the contributing factor criterion is the knowledge/timing test, under
which she submits evidence showing 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. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63. The Board has held that if an
administrative judge determines that an appellant has failed to satisfy the
knowledge/timing test, she 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
officials taking the action, and whether these individuals had a desire or motive to
retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.
On review, the appellant argues that the administrative judge erred in
finding that she failed to prove that her April 17, 2017 Board appeal was a
contributing factor in her first-level supervisor’s decision to issue her a rating of
three for the participation element of her 2017 annual performance review.4
4 The appellant also argues that the administrative judge’s finding that she failed to
prove contributing factor is “plainly inconsistent” with her prior finding that the
appellant met the knowledge/timing test. PFR File, Tab 1 at 7. Such an argument,
however, fails to recognize the different burdens of proof at the jurisdictional and4
PFR File, Tab 1 at 4. In particular, the appellant asserts that the administrative
judge erred by only considering the knowledge/timing test and by failing to
consider evidence of retaliatory motive. Id. at 4-7. We agree and modify the
administrative judge’s analysis to address evidence other than the
knowledge/timing test but still find no reason to disturb the administrative
judge’s finding that the appellant failed to establish that her 2017 Board appeal
was a contributing factor in her performance appraisal rating.
With respect to the knowledge/timing test , the administrative judge
credited the testimony of the appellant’s first-level supervisor that she was not
aware of the appellant’s 2017 Board appeal when she prepared or issued the
appellant’s 2017 performance appraisal on October 27, 2017, and that she first
learned of the Board appeal on November 28, 2017. ID at 6-7. The
administrative judge further found that the appellant’s first-level supervisor did
not have constructive knowledge and her decision to issue a rating of three was
not influenced by anyone who had knowledge of the appellant’s 2017 Board
appeal. ID at 7. In so finding, the administrative judge credited the testimony of
the appellant’s second-level supervisor, who testified in connection with the
appellant’s 2017 Board appeal that he did not become aware of the 2017 Board
appeal until December 2017 or January 2018. Id. The administrative judge
further credited the testimony of the appellant’s first- and second-level
supervisors that the appellant’s second-level supervisor had no input in the
appellant’s 2017 performance appraisal and did not discuss it or see it before it
was issued to the appellant. Id.
merits stages. Compare Shope v. Department of the Navy , 106 M.S.P.R. 590, ¶ 5 (2007 )
(explaining that an appellant is entitled to a jurisdictional hearing in an IRA appeal only
when he sets forth in the written record a nonfrivolous allegation that the elements of
his claim are satisfied), with Benton-Flores v. Department of Defense , 121 M.S.P.R.
428, ¶¶ 4-5 (2014 ) (stating that, once the appellant establishes jurisdiction over her IRA
appeal, she is entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence).5
The appellant disputes the administrative judge’s findings that her
first-level supervisor had no actual or constructive knowledge of her 2017 Board
appeal. For example, she asserts that the entire “management team” was aware of
her protected activities, including her frequent and extensive equal employment
opportunity activities and that her first-level supervisor received several emails
describing issues the appellant was having at work. PFR File, Tab 1 at 5. She
further maintains that it is improbable that management would have completely
insulated her first-level supervisor from the knowledge of her Board appeal.
Id. at 5-6. Finally, she asserts that it is implausible that her first-level supervisor
would not have become aware of her Board appeal from agency attorneys who she
contends would had to have contacted her supervisor for information supporting
their case. Id. at 7.
The administrative judge, however, considered and rejected the appellant’s
version of events as improbable, noting that the fact that the appellant’s
supervisor was aware of various issues the appellant was having through emails
and comments from the appellant did not suggest that she was aware the appellant
had filed a Board appeal. ID at 5-6. Thus, she credited the testimony of the
appellant’s supervisors that neither was aware of the appellant’s Board appeal at
the time the appellant’s performance appraisal was issued on October 27, 2017.
ID at 7. 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). Here, the
administrative judge’s credibility determinations were based on her observation
and assessment of the agency officials’ demeanor during the hearing. See Purifoy
v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)
(stating that, even if demeanor is not explicitly discussed by an administrative
judge, assessing a witness’s credibility involves consideration of various factors,6
including a witness’s demeanor). Although the appellant disagrees with the
credibility determinations, we find that her challenges are not sufficiently sound
to overturn them.
Next, we consider evidence other than knowledge/timing evidence. It is
undisputed that the appellant’s first-level supervisor, who issued the appellant’s
2017 performance appraisal, was not personally implicated in the appellant’s
2017 Board appeal. Hearing Transcript (HT) at 92-93 (testimony of the
appellant’s first-level supervisor); PFR File, Tab 1 at 5-6. Also, as explained
above, the administrative judge found, based on her assessment of the witnesses’
credibility, that the appellant failed to show that anyone with knowledge of her
2017 Board appeal influenced her first-level supervisor. ID at 6-7; see Baker v.
Social Security Administration , 2022 MSPB 27, ¶ 30 (explaining that an
administrative judge’s demeanor-based credibility findings are virtually
unreviewable on review). As to any desire or motive to retaliate against the
appellant, her first-level supervisor denied during her sworn testimony that the
appellant’s 2017 Board appeal had any effect on her 2017 performance appraisal
ratings. HT at 92-93 (testimony of the appellant’s first-level supervisor). The
appellant did not solicit any testimony, nor is there any evidence of record,
concerning her first-level supervisor’s attitude toward her 2017 Board appeal that
might otherwise refute this testimony. Therefore, we accept her supervisor’s
testimony as proof of her lack of retaliatory motive. See Woodall v. Federal
Energy Regulatory Commission , 30 M.S.P.R. 271, 273 (finding that a declaration
subscribed under penalty of perjury proves the facts it asserts).
We also find that the appellant’s first-level supervisor’s explanation for
determining the appellant’s performance rating is strong. The appellant’s
first-level supervisor testified that the participation element rating she issued was
justified because, among other reasons, many of the duties the appellant
highlighted in her self-assessment were duties she was assigned to perform, and
any unassigned work she did was not performed on a “sustained, consistent basis7
throughout the appraisal year” to merit a higher rating. HT at 108 (testimony of
the appellant’s first-level supervisor).
Specifically, Case Managers who received ratings of five in the
participation element worked with a judge who processed the “more technical”
Puerto Rico fraud cases, which involved “daily processing” and work on a
“sustained, consistent basis,” which was not otherwise part of the normal
workload of a Case Manager. HT at 120-21, 124-25, 128, 133 (testimony of the
appellant’s first-level supervisor). The appellant’s first-level supervisor testified
that the appellant was not assigned to work with this judge and only did the
“initial work up” on those cases, which the appellant has not presented evidence
to refute. HT at 108 (testimony of the appellant’s first-level supervisor).
Lastly, it is undisputed that the appellant received the exact same ratings in
her 2016 performance appraisal as she did in the appraisal at issue here. HT
at 94-95 (testimony of the appellant’s first-level supervisor); IAF, Tab 82 at 4-6.
That appraisal was issued in October 2016 by a different supervisor, and prior to
the appellant filing her 2017 Board appeal in April 2017, which tends to show
that the 2017 appraisal was consistent with the appellant’s performance
assessments before her protected activity. IAF, Tab 82 at 6. It is also undisputed
that, out of the eight employees under the supervision of the appellant’s
first-level supervisor in 2017, the appellant’s overall rating ranked in the middle,
receiving a higher overall rating than four employees and the same ratings as one,
which also tends to show that her supervisor did not harbor retaliatory motive
towards her. IAF, Tab 82 at 23-42, Tab 83 at 4-9. Thus, we agree with the
administrative judge’s conclusion that the appellant has not shown by
preponderant evidence that her 2017 Board appeal was a contributing factor in her
2017 performance appraisal.
The appellant’s remaining arguments do not provide a basis for reversal.
On review, the appellant asserts that the administrative judge abused her
discretion by failing to transfer the appeal to the Washington Regional Office.8
PFR File, Tab 1 at 7-8. She maintains that this was the proper venue because,
although she physically works in Chicago, Illinois, agency management is based
out of Falls Church, Virginia. Id. at 8. She also cites, without explanation,
alleged prior abuse of discretion by a different administrative judge in her
2017 Board appeal as a reason for transferring the current appeal. Id. at 7-8.
Under 5 C.F.R. § 1201.4(d), the location of the appellant’s duty station when the
action was taken determines which Board regional office has jurisdiction. Thus,
to the extent the appellant’s duty station was and is in Chicago, Illinois, the
Central Regional Office had jurisdiction over the appeal. See 5 C.F.R. pt. 1201,
app. II. Although the record reflects that the appellant filed motions for recusal
of the administrative judge in this appeal, such motions were based on the
administrative judge’s alleged verbal admonishment of the appellant during status
conferences and general claims of alleged bias, not any claim of bias related to
the administrative judge in the appellant’s prior Board appeal. IAF, Tabs 28, 41.
Regardless, we discern no basis for recusal of the administrative judge in this
appeal based on any alleged bias by a different administrative judge in the
appellant’s prior Board appeal or based on the allegations set forth in the
appellant’s motions concerning the administrative judge in this appeal. Nothing
in the record suggests that the impartiality of the administrative judge in this
appeal might reasonably be questioned. See, e.g., Allphin v. United States ,
758 F.3d 1336, 1343-44 (Fed. Cir. 2014) (finding that recusal is required when a
reasonable person knowing all the facts would question the judge’s impartiality);
Department of Health & Human Services v. Jarboe , 2023 MSPB 22, ¶ 12
(explaining that in determining whether an administrative judge should be
disqualified on grounds other than bias, the Board assesses whether his
impartiality might reasonably be questioned) (citations omitted) .
Finally, the appellant reiterates her argument that the hearing recording was
altered to exclude an exchange that she had with the administrative judge. PFR
File, Tab 1 at 8. However, the administrative judge considered such an argument9
but found that the portion alleged to have been missing from the record was an
admonishment the administrative judge made off the record in an effort not to
embarrass the appellant, who was proceeding pro se. ID at 9-10. We find that
the administrative judge did not abuse her discretion. See, e.g., Tisdell v.
Department of the Air Force , 94 M.S.P.R. 44, ¶ 13 (2003) (noting that an
administrative judge has wide discretion to regulate the course of the hearing);
5 C.F.R. § 1201.41(b)(6).
Accordingly, we affirm the initial decision.5
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
5 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.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain11
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 12
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Baker_Mitzi_G_CH-1221-18-0412-W-1__Final_Order.pdf | 2024-07-17 | MITZI BAKER v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. CH-1221-18-0412-W-1, July 17, 2024 | CH-1221-18-0412-W-1 | NP |
937 | https://www.mspb.gov/decisions/nonprecedential/McLaughlin-Graham_Karen_D_PH-0831-20-0250-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN D. MCLAUGHLIN-
GRAHAM,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0831-20-0250-I-1
DATE: July 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Karen D. McLaughlin-Graham , Randallstown, Maryland, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision by the Office of Personnel Management (OPM)
denying her request to change her survivor annuity election. For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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
Under 5 U.S.C. § 8339(o), an employee who is married at the time of her
retirement and elects less than the maximum survivor annuity has an 18 -month
window after her retirement during which she may elect to increase her monthly
annuity reduction to provide a greater survivor annuity. Rollins v. Office of
Personnel Management , 112 M.S.P.R. 557, ¶ 8 (2009); 5 C.F.R. § 831.622(b)(1).
The appellant in this case wishes to increase her spouse’s survivor annuity, and
seeks a waiver of the 18-month deadline for making such an election.
The appellant bears the burden of establishing her entitlement to a waiver.
Rollins, 112 M.S.P.R. 557, ¶ 6; see Cheeseman v. Office of Personnel
Management, 791 F.2d 138, 140 -41 (Fed. Cir. 1986). There are three potential
grounds for waiving the deadline: (1) the statute or regulation itself specifies
circumstances for a waiver; (2) affirmative misconduct by the agency warrants
equitable estoppel of the statutory or regulatory provision; or (3) the agency fails
to provide notice of election rights and corresponding deadlines, if such notice is
required by statute or regulation. Nunes v. Office of Personnel Management ,
111 M.S.P.R. 221, ¶ 16 (2009).
Here, the first circumstance does not apply, as neither 5 U.S.C. § 8339(o)
nor 5 C.F.R. § 831.622(b)(1) include a provision describing conditions in which
the 18-month deadline may be waived. See id., ¶ 17. Furthermore, while the
appellant contends that her retirement counselor was negligent in failing to
explain the calculation of her reduced annuity, the Board has held that the
negligent provision of misinformation does not constitute affirmative misconduct
that would warrant equitable estoppel of the deadline. See Scriffiny v. Office of
Personnel Management , 108 M.S.P.R. 378, ¶¶ 12-14 (2008), overruled on other2
grounds by Nunes , 111 M.S.P.R. 221, ¶ 15. Hence, the second circumstance also
does not apply.
As to the third possible ground for waiver, 5 U.S.C. § 8339( o) requires
OPM to give eligible employees annual notice of their right to elect an increased
survivor annuity, and the applicable procedures and deadlines. Rollins,
111 M.S.P.R 557, ¶ 8; Nunes, 111 M.S.P.R. 221, ¶ 15. The appellant argues that
the 18-month deadline should be waived because OPM did not provide the
required annual notice.
OPM bears the burden of proving that it provided the annual notice
required under 5 U.S.C. § 8339( o). Nunes, 111 M.S.P.R. 221, ¶ 20. If OPM can
establish through credible evidence that it is more probable than not that it sent
the notice, the burden of going forward falls upon the appellant, who must put
forth credible testimony or other evidence tending to show that she did not
receive the notice. See id. If OPM fails to meet its burden of showing that it
provided the required annual notice, waiver of the deadline is appropriate if the
appellant establishes that the annuitant—herself, in this case—had the intention to
increase her survivor annuity election at some point during the 18-month period.
See Rollins, 112 M.S.P.R. 557, ¶¶ 8-10.
OPM asserts that it provided the appellant the required annual notice in
December 2017 and December 2018. Initial Appeal File, Tab 5 at 4. In support
of its assertion, OPM has provided an affidavit from an employee of the
Retirement Services Branch, who attested that general notices regarding survivor
benefit election deadlines were mailed to all annuitants every December from
1989 to 2017. Id. at 40-41. However, OPM has neglected to produce any
evidence that it issued the appellant the required annual notice in December 2018.
See Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995) (holding
that the statements of a party’s representative in a pleading do not constitute
evidence). In the absence of such evidence, OPM has failed to meet its burden of3
showing that it provided the required annual notice throughout the 18-month
period following the appellant’s retirement.
However, waiver of the deadline is an appropriate remedy only if the
appellant shows that, at some point during the 18-month window after her
retirement, she intended to increase her spouse’s survivor annuity. See Rollins,
111 M.S.P.R. 557, ¶¶ 6-8. The appellant has not previously been informed of her
burden of proof on this issue, and we cannot determine from the existing record
whether she developed that intention before or after the 18-month period expired.
Accordingly, we remand the case for further development of the record, including
an additional hearing if needed, and a new determination on the appellant’s
possible entitlement to a waiver of the 18-month deadline. See id., ¶¶ 12-13.
ORDER
For the reasons discussed above, we remand this case to the 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.4 | McLaughlin-Graham_Karen_D_PH-0831-20-0250-I-1__Remand_Order.pdf | 2024-07-17 | null | PH-0831-20-0250-I-1 | NP |
938 | https://www.mspb.gov/decisions/nonprecedential/Quattro_Jamie_L_NY-0831-20-0154-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMIE L. QUATTRO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-20-0154-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jamie L. Quattro , Ava, New York, 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
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) that denied as untimely filed his application for a spousal
survivor annuity for his second wife under the Civil Service Retirement System
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(CSRS). On petition for review, the appellant (1) expresses disappointment with
the initial decision and (2) queries what “becomes of the reduced annuity from
[his] retirement annuity” now that he has been denied the benefits sought.
Petition for Review (PFR) File, Tab 1 at 1. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’s analysis to address the
appellant’s assertion regarding his reduced annuity rate, we AFFIRM the initial
decision.
An individual seeking retirement benefits bears the burden of proving
entitlement to those benefits by preponderant evidence. Cheeseman v. Office of
Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R.
§ 1201.56(b)(2)(ii). To meet his burden, the appellant must show that he
irrevocably elected to provide a CSRS survivor annuity for his second wife in a
signed writing that OPM received within 2 years of his remarriage. See 5 U.S.C.
§ 8339(j)(5)(C)(i); Kirk v. Office of Personnel Management , 93 M.S.P.R. 547, ¶ 4
(2003). OPM, however, has a statutory obligation to notify annuitants annually
of their survivor annuity election rights under 5 U.S.C. § 8339(j). Brush v. Office
of Personnel Management , 982 F.2d 1554, 1559-60 (Fed. Cir. 1992). OPM has2
the burden of proving both that it sent the annual notice and the contents of the
notice. Id. at 1560-61; Cartsounis v. Office of Personnel Management ,
91 M.S.P.R. 502, ¶ 5 (2002). If OPM establishes through credible evidence that
it is more probable than not that it sent the annual notice, the appellant then must
present credible testimony or other evidence supporting the contention that he did
not receive the same. Cartsounis, 91 M.S.P.R. 502, ¶ 5. When OPM does not
show that it has complied with the statutory annual notice requirement, and the
appellant’s conduct is consistent with his having made an election of a survivor
annuity, OPM must allow the appellant to make the survivor election. Id.
The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s conclusion that his June 8, 2019 postretirement election of
survivor annuity benefits for his second wife was untimely by approximately
8 years. PFR File, Tab 1 at 1; Initial Appeal File (IAF), Tab 15, Initial Decision
at 4; see 5 U.S.C. § 8339(j)(5)(C)(i). Instead, he queries what “becomes of the
reduced annuity from [his] retirement annuity.” PFR File, Tab 1 at 1. Although
unclear, we surmise that he is arguing, as he did before the administrative judge,
that the 2-year time limit set forth in 5 U.S.C. § 8339(j)(5)(C)(i) is inapplicable to
him because he has, since his 1995 retirement, continuously received a reduced
annuity rate on account of his election to provide a partial survivor annuity for his
now-deceased first wife. IAF, Tab 6 at 53-54, 57, Tab 11 at 1. Because the
administrative judge did not address this argument, we hereby supplement the
initial decision; however, we find that a different outcome is not warranted.
Here, OPM provided an affidavit from an employee “familiar with the
history of notices related to civil service annuity payments” explaining that
general notices regarding survivor elections were sent annually to all annuitants
from 1989 to 2011. IAF, Tab 6 at 7-8. Such notice satisfies OPM’s burden of
proving that it sent the required annual notice to the appellant. See Schoemakers
v. Office of Personnel Management , 180 F.3d 1377, 1380-81 (Fed. Cir. 1999)
(concluding that a similar affidavit from a person familiar with how annual3
notices are prepared and sent can satisfy OPM’s burden to show that the annual
notices were sent). OPM also provided a copy of the notice, which specifically
explained that “a new survivor annuity election” would be required for a
postretirement marriage, even if the appellant had previously elected to provide a
survivor annuity for a former spouse at the time of his retirement and the annuity
reductions related thereto had erroneously continued after the death of the prior
spouse. IAF, Tab 6 at 10; cf. Bogart v. Office of Personnel Management ,
99 M.S.P.R. 647, ¶ 10 (2005) (finding OPM’s notice deficient when it failed to
inform the appellant that his initial spousal survivor annuity election would
terminate upon the death or divorce of his spouse, thereby requiring him to make
a new election if he wished to continue the benefit for either his divorced spouse
or a new spouse). The appellant did not challenge OPM’s affidavit or otherwise
contend that he did not receive the subject notice; instead, he averred that he had
not read the notice, in part because he was unable to read the fine print without
his eyeglasses. IAF, Tab 1 at 4, 8; see Cartsounis, 91 M.S.P.R. 502, ¶ 7 (finding
the appellant’s assertion that OPM’s notice should have been “more obvious” did
not support the conclusion that he had not received the same). Because the
appellant here received proper notice of his election rights under 5 U.S.C.
§ 8339(j), his continued receipt of purportedly reduced annuity payments2 does
not warrant a different outcome. PFR File, Tab 1 at 1; see Downing v. Office of
Personnel Management , 619 F.3d 1374, 1377-78 (Fed. Cir. 2010) (explaining
that, because 5 U.S.C. § 8339(j) provides no exception to the 2-year time limit
when OPM has provided the annuitant with proper annual notice, any erroneous
deductions on part of OPM were not material to the appellant’s entitlement to
survivor benefits).
2 To the extent the appellant believes that OPM has, since it received notice of the 2007
death of this first wife, miscalculated his annuity payments and overcharged him, he
may initiate a new claim with OPM regarding that issue. PFR File, Tab 1 at 1; IAF, Tab
6 at 53. To the extent OPM fails to issue a final decision within 90 days, the appellant
may file a new appeal with the Board. 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). 4
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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Quattro_Jamie_L_NY-0831-20-0154-I-1__Final_Order.pdf | 2024-07-17 | JAMIE L. QUATTRO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-20-0154-I-1, July 17, 2024 | NY-0831-20-0154-I-1 | NP |
939 | https://www.mspb.gov/decisions/nonprecedential/Roy_Castille_M_DC-0843-23-0387-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CASTILLE M. ROY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0843-23-0387-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Castille M. Roy , Silver Spring, Maryland, pro se.
Angerlia D. Johnson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her appeal of an Office of Personnel Management
(OPM) reconsideration decision finding that she is not entitled to a former spouse
survivor annuity under the Federal Employees’ Retirement System (FERS). On
petition for review, the appellant reargues the merits of her case and resubmits
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
filings from below. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Roy_Castille_M_DC-0843-23-0387-I-1__Final_Order.pdf | 2024-07-17 | CASTILLE M. ROY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0843-23-0387-I-1, July 17, 2024 | DC-0843-23-0387-I-1 | NP |
940 | https://www.mspb.gov/decisions/nonprecedential/Harrington_Charles_W_AT-0714-18-0615-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES W. HARRINGTON, JR.,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-18-0615-X-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher J. Keeven , Esquire, and Conor D. Dirks , Esquire, Washington,
D.C., for the appellant.
Dana C. Heck , Esquire, St. Petersburg, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
On December 30, 2021, the administrative judge issued a compliance initial
decision that found the agency in noncompliance with the March 31, 2021 remand
initial decision, which reversed the appellant’s removal and ordered the agency 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).
restore him to duty and to pay him appropriate back pay and benefits. Harrington
v. Department of Veterans Affairs , MSPB Docket No. AT-0714-18-0615-C-1,
Compliance File (CF), Tab 14, Compliance Initial Decision (CID); Harrington v.
Department of Veterans Affairs , MSPB Docket No. AT-0714-18-0615-M-1,
Remand File (RF), Tab 18, Remand Initial Decision (RID). For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On March 31, 2021, following remand of the case from the Federal Circuit
for further adjudication, the administrative judge issued a remand initial decision
reversing the appellant’s removal and ordering the agency to restore him to duty
and to pay him applicable back pay, with interest, and benefits. RID at 1, 7-8.
The remand initial decision became the Board’s final decision on May 5, 2021,
after neither party filed a petition for review.
On July 9, 2021, the appellant filed a petition for enforcement of the initial
decision. CF, Tab 1. The administrative judge granted the petition for
enforcement and again ordered the agency to take appropriate steps to pay the
appellant and submit proof of compliance to the Board. CID at 5. After neither
party petitioned for review, the matter was referred to the Board to obtain
compliance. See 5 C.F.R. §§ 1201.183(b)-(c).
On February 8, 2022, the Board issued an acknowledgment order directing
the agency to submit evidence showing that it had complied with all the actions
identified in the compliance initial decision. Harrington v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-18-0615-X-1, Compliance Referral
File (CRF), Tab 1. The agency responded on February 23, and February 28,
2022, that it had paid the appellant all the back pay owed with interest by two,
separate payments, which were issued to the appellant by the Defense Finance2
and Accounting Service (DFAS) on September 3, 2021, and February 18, 2022.
CRF, Tabs 2, 3.
On March 15, 2022, the appellant responded that the agency had not fully
complied with these actions because it failed to explain why the agency did not
include any overtime and/or night and weekend differentials in its back pay
calculations. CRF, Tab 4. He also alleged that the agency’s calculations did not
appear to account for overtime and/or night and weekend differentials. Id. The
agency responded that the appellant had not provided evidence for any
entitlement not already included in the back pay calculation. CRF, Tab 5.
On April 20, 2022, the Board issued an order requiring the agency to
specifically address, via affidavit and documentary evidence, how its backpay
calculations complied with various requirements. CRF, Tab 6. Thereafter, the
parties exchanged responses, and the agency filed several declarations detailing
its various payments to the appellant. CRF, Tabs 7-9, 12-13, 15-18. The
appellant eventually filed a compliance status report acknowledging that he has
now received all appropriate back pay. CRF, Tab 19.
ANALYSIS
When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325, ¶
5 (2010).3
The agency has filed multiple submissions explaining its compliance
efforts, and the appellant has confirmed that he has received all pay and benefits
to due him. CRF, Tab 19. Accordingly, we find that the agency has complied
with its obligations.
The appellant noted that he did not receive his entire back pay award until
June 2023, because of delays by the agency. CRF, Tab 19. He argued that these
delays of almost two years were unjustified and required him to accrue significant
attorney fees, and he requested the opportunity to seek additional attorney fees
for the period from May 15, 2022, to June 30, 2023. Id. The Board’s regulations
provide that attorney fee petitions cannot be filed until after the relevant case has
concluded. 5 C.F.R. § 1201.203(d). The issuance of this Final Order concludes
this compliance action. Accordingly, the appellant may file his attorney fee
petition in accordance with the regulations at 5 C.F.R. § 1201.203.
For the reasons stated above, the Board finds the agency in compliance and
DISMISSES the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in these compliance proceedings. Title 5 of the Code
of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal. 4
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Harrington_Charles_W_AT-0714-18-0615-X-1__Final_Order.pdf | 2024-07-17 | null | AT-0714-18-0615-X-1 | NP |
941 | https://www.mspb.gov/decisions/nonprecedential/Pantohan_FrancescaSF-0752-22-0590-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCESCA N. PANTOHAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-22-0590-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Francesca N. Pantohan , Ewa Beach, Hawaii, pro se.
Briana Buban , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal based on the charges of failure to follow
instructions and inappropriate conduct. 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).
claims that the initial decision is based on erroneous findings of material fact.
She discusses the background of her case, the charges, and her affirmative
defenses of retaliation for engaging in protected activity and retaliation for
making protected disclosures, but she largely reargues the facts and merits of her
case. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review.2 Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
2 As discussed in the initial decision, before her removal, the appellant in this case filed
numerous complaints with various entities within the agency on a variety of issues,
including different interpretations of certain agency policies and standard operating
procedures, her prior suspension, and instructions that were allegedly causing her
“ethical dilemmas.” Initial Appeal File (IAF), Tab 28, Initial Decision at 5-9. We have
considered whether the administrative judge should have discussed whether any of these
complaints constituted protected activities under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C),
or (D), and find that he correctly did not do so. The appellant did not mention these
incidents in connection with any claim that her removal was in retaliation for such
activities in any of her appeal filings, and, further, she did not object to the
administrative judge’s multiple orders framing the issues in this case, and she does not
refer to these incidents as protected activities or dispute the administrative judge’s
handling of her retaliation claim on petition for review. See IAF, Tabs 1, 15, 20, 21,
23; Petition for Review File, Tab 1. 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).
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 | Pantohan_FrancescaSF-0752-22-0590-I-1__Final_Order.pdf | 2024-07-17 | FRANCESCA N. PANTOHAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-22-0590-I-1, July 17, 2024 | SF-0752-22-0590-I-1 | NP |
942 | https://www.mspb.gov/decisions/nonprecedential/Bradley_ShamarDC-1221-22-0577-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAMAR BRADLEY,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-1221-22-0577-W-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shamar Bradley , Helotes, Texas, pro se.
Matthew B. Hawkins , Esquire, Jason B Smith , Esquire, Dahlgren, 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 this individual right of action appeal for lack of jurisdiction. On
review, the appellant alleges that he disclosed that the agency conducted a Top
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Secret background check for his security clearance, rather than the more
cost-effective Secret background check required for his position. Petition for
Review (PFR) File, Tab 1 at 4. But he has not directed us to any evidence
showing that he exhausted this claim with the Office of Special Counsel, and he
has not presented nonfrivolous allegations that this was a protected disclosure,
both of which are required to establish jurisdiction. Gabel v. Department of
Veterans Affairs , 2023 MSPB 4, ¶ 5. The appellant’s petition also alleges that the
Department of Defense is at risk of failing to identify insider threats. PFR File,
Tab 1 at 4. But he has not explained whether he disclosed this or met the other
jurisdictional requirements over this matter. Id. In his reply, following the
agency’s response to his petition for review, the appellant further alleges that his
supervisor ordered him to access classified materials without authorization. PFR
File, Tab 5 at 4. Yet the administrative judge found that these allegations did not
meet the nonfrivolous allegation standard, and we agree. Initial Appeal File,
Tab 185, Initial Decision at 10-13; see Hessami v. Merit Systems Protection
Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020)); Gabel, 2023 MSPB 4, ¶ 5.
¶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 the2
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420, 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 of4
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . 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 | Bradley_ShamarDC-1221-22-0577-W-1__Final_Order.pdf | 2024-07-17 | SHAMAR BRADLEY v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-1221-22-0577-W-1, July 17, 2024 | DC-1221-22-0577-W-1 | NP |
943 | https://www.mspb.gov/decisions/nonprecedential/Chesbro_MichaelSF-1221-20-0140-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL CHESBRO,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-20-0140-W-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Chesbro , Rainier, Washington, pro se.
Stephen Geringer , Esquire, Tacoma, Washington, for the agency.
Robert Jarrett , Esquire, Joint Base Lewis-McChord, Washington, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
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).
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 was a GS-11 Criminal Intelligence Specialist for the agency
who was required to maintain a security clearance as a condition of employment.
Initial Appeal File (IAF), Tab 7 at 11, 18. On February 28, 2018, the agency
suspended the appellant’s access to classified information, and on September 6,
2018, it proposed his indefinite suspension pending the outcome of the security
clearance determination. Id. at 18-20.
On February 7, 2019, after the appellant responded but before the agency
issued a decision, the parties entered into a settlement agreement in which the
agency agreed to rescind the proposal and the appellant agreed to resign effective
June 30, 2019. Id. at 12-14, 21-23. The settlement agreement also provided that
the appellant would waive his right to any claims related to the proposed
indefinite suspension, as well as any “other disputes, complaints, or claims which
are known to him or which should have been known to him up to and including2
the date of his signature on this settlement agreement.” Id. at 12-13. Effective
June 30, 2019, the appellant separated from service by retirement. Id. at 15.
Meanwhile, on August 22, 2018, an agency law enforcement officer
executed a statement of probable cause, averring that the appellant misused an
agency law enforcement database to obtain information that he used in a doxing
campaign against two individuals. IAF, Tab 1 at 20-23. The appellant was
subsequently ordered to appear for arraignment in Federal District Court. Id.
at 19. It is not clear what became of these criminal proceedings.
On September 25, 2019, after he retired but possibly while the criminal
case was still pending, the appellant filed a whistleblower complaint with the
Office of Special Counsel (OSC). IAF, Tab 6 at 22. OSC closed the appellant’s
file without taking corrective action, and the appellant filed the instant IRA
appeal. IAF, Tab 1 at 1-2.
The administrative judge issued the standard jurisdictional order for an IRA
appeal, notifying the appellant of his burden of proof and giving him specific
directions on filing evidence and argument pertinent to the jurisdictional issue.
IAF, Tab 2 at 2-9. The administrative judge subsequently issued another order,
stating that the appellant appeared to have waived his Board appeal rights in the
settlement agreement and notifying the appellant of what he must show to prove
that the agreement was invalid or unenforceable. IAF, Tab 8.
After the record closed, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID).
She found that the appellant was claiming personnel actions of harassment,
spurious criminal investigation, suspension, and constructive removal, but that
these claimed personnel actions were variously covered by the waiver provision
of the valid and enforceable settlement agreement, or did not constitute personnel
actions within the meaning of 5 U.S.C. § 2302(a)(2)(A). ID at 7-12.
The appellant has filed a petition for review, arguing that the settlement
agreement was invalid based on false information that the agency provided in the3
statement of probable cause and exculpatory information that the agency withheld
from the court. Petition for Review (PFR) File, Tab 2. The agency has filed a
response. PFR File, Tab 1.
ANALYSIS
On petition for review, the appellant does not challenge the administrative
judge’s finding that the criminal proceedings and the agency’s handling of his
Privacy Act request, neither alone nor together, constituted personnel actions
subject to the Board’s IRA jurisdiction. ID at 7-8, 11-12. We find that the
administrative judge’s analysis of these issues is supported by the record and the
law, and we decline to revisit her findings on review. See 5 C.F.R. § 1201.115
(“The Board normally will consider only issues raised in a timely filed petition or
cross petition for review.”). The appellant does, however, renew his argument
that the settlement agreement is invalid due to the agency’s concealment of
material facts about the criminal proceedings. PFR File, Tab 2 at 2-5.
A settlement agreement is a contract between the parties and its terms are
to be interpreted as a question of contract law. LaMontagne v. U.S. Postal
Service, 91 M.S.P.R. 304, ¶ 6 (2002). An appellant may challenge the validity of
a settlement agreement if he believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Bahrke v. U.S. Postal Service , 98 M.S.P.R. 513, ¶ 11
(2005). Even if invalidity was not apparent at the time of settlement, the
agreement must be set aside if it is subsequently shown by new evidence that the
agreement was tainted with invalidity by fraud or misrepresentation. Henson v.
Department of the Treasury , 86 M.S.P.R. 221, ¶ 7 (2000). However, the party
challenging the validity of a settlement agreement bears a heavy burden of
showing a basis for invalidation. Bahrke, 98 M.S.P.R. 513, ¶ 11. In this case, we
find that the appellant is essentially arguing that the settlement agreement was
invalid based on fraud in the inducement, i.e., an intentional misrepresentation of
a material risk or duty which reasonably induces the other party to enter into the4
agreement.2 Wofford v. Department of Justice , 115 M.S.P.R. 468, ¶ 7 (2010)
(citing Black’s Law Dictionary 671 (7th Ed. 1999)). To establish that a
settlement agreement resulted from fraud in the inducement, the appellant must
show that the agency knowingly concealed a material fact or intentionally misled
him. Id.
The appellant argues that his waiver of Board appeal rights was not
knowing and informed because the agency concealed material facts, “preventing
[him] from being fully aware of the Prohibited Personnel Practices and criminal
activity” that the agency committed against him at the time that the settlement
agreement was signed. PFR File, Tab 2 at 2. By “Prohibited Personnel Practices
and criminal activity,” it appears that the appellant is referring to the August 22,
2018 statement of probable cause, which he claims was based on knowingly false
information and excluded exculpatory information in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Id. The appellant alleges that the criminal
prosecution and the proposed indefinite suspension were based on the same
misinformation, and that the agency prevented him from learning about the basis
for either action in any more than a general sense. Id. at 3-4. He further argues
that the agency knew or should have known that the indefinite suspension could
not be sustained. Id. at 4-5.
As an initial matter, we note that the reason for the proposed indefinite
suspension was the suspension of the appellant’s security clearance, and not the
underlying alleged misconduct. IAF, Tab 7 at 18. Because the Board lacks the
authority to review the reasons underlying a security clearance determination,
Department of the Navy v. Egan , 484 U.S. 518, 530 -31 (1988), there is no reason
2 The appellant characterizes his argument as pertaining to a violation of the implied
covenant of good faith. PFR File, Tab 2 at 3. However, a violation of a covenant of
good faith constitutes a breach of the settlement agreement; it does not affect the
validity of the agreement ab initio. See, e.g., Timberlake v. U.S. Postal Service ,
79 M.S.P.R. 520, 524-25 (1998); Kuykendall v. Department of Veterans Affairs ,
68 M.S.P.R. 314, 323-24 (1995). Reading this pro se appellant’s petition for review as
a whole, and considering that the alleged agency misconduct preceded the settlement
agreement, we find that he is arguing invalidity rather than breach.5
to think that the indefinite suspension would not have been sustained on appeal
regardless of whether the appellant committed the misconduct as alleged.
Furthermore, there is no reason to think that the agency knew or should have
known that the contents of the statement of probable cause might have been
material to the appellant’s decision to settle his case. Although the criminal and
administrative cases may have stemmed from the same alleged misconduct, the
proceedings were separate, and the criminal prosecution was out of the agency’s
hands by the time the appellant entered into the settlement. ID at 7.
Moreover, there is no reason to believe that the agency was concealing the
statement of probable cause from the appellant. Had the appellant requested the
statement of probable cause prior to settlement and the agency denied his request,
the analysis might be different. However, the appellant did not actually request
the statement until May 9, 2019, whereupon the agency promptly gave it to him.
IAF, Tab 1 at 19-25.
For these reasons, and for the reasons explained in the initial decision, we
agree with the administrative judge that the appellant has failed to show that the
agency induced him to settle his case by knowingly concealing any material fact
or by intentionally misleading him.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
10
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Chesbro_MichaelSF-1221-20-0140-W-1__Final_Order.pdf | 2024-07-17 | MICHAEL CHESBRO v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-20-0140-W-1, July 17, 2024 | SF-1221-20-0140-W-1 | NP |
944 | https://www.mspb.gov/decisions/nonprecedential/Butler_Timothy_W_DA-1221-19-0077-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY W BUTLER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-1221-19-0077-X-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy W. Butler , San Antonio, Texas, pro se.
G. Houston Parrish , Fort Knox, Kentucky, 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
¶1On July 18, 2023, the administrative judge issued a compliance initial
decision finding the agency noncompliant with the January 20, 2023 Final Order
in the underlying matter, which reversed the appellant’s removal and ordered the
agency to restore him to duty and pay him appropriate back pay, with interest, 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).
benefits. Butler v. Department of the Army , MSPB Docket
No. DA-1221-19-0777-C-1, Compliance File (CF), Compliance Initial Decision
(CID), Tab 14. For the reasons discussed below, we now find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2On January 20, 2023, the Board granted the appellant’s petition for review,
reversed the July 3, 2019 initial decision of the administrative judge that had
sustained the appellant’s removal, and ordered appropriate corrective action,
including restoration of employment with back pay, interest, and benefits. Butler
v. Department of the Army , MSPB Docket No. DA-1221-19-0777-W-1, Final
Order (Jan. 20, 2023). The appellant subsequently filed a petition for
enforcement. CF, Tab 1. The administrative judge issued a compliance initial
decision finding that the agency had properly reinstated the appellant but had not
demonstrated that it provided him appropriate back pay, with interest, and
benefits. CID at 4.
¶3 In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the compliance actions required by the decision,
it must submit to the Office of the Clerk of the Board, within the time limit for
filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had
taken the actions identified in the compliance initial decision, along with
evidence establishing that it had taken those actions. CID at 6-7; 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
August 22, 2023, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party petitioned for
review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative
judge’s findings of noncompliance became final, and the appellant’s petition for2
enforcement was referred to the Board for a final decision on issues of
compliance. Butler v. Department of the Army , MSPB Docket
No. DA-1221-19-0777-X-1, Compliance Referral File (CRF), Tab 3.
¶4On August 22, 2023, the agency filed a submission stating that it was
working with its paying agent, the Defense Finance Accounting Service (DFAS),
to calculate the appellant’s back pay but that DFAS required additional
information to complete its calculations. Specifically, the appellant’s
January 2023 submission to DFAS indicated that there were periods of time
during the back pay period that he was unable to work, which would affect the
amount of back pay owed. CRF, Tab 1 at 4-5. The agency stated that it had
attempted to obtain the necessary information from the appellant but that he had
not provided the specific dates during which he was unable to work, and the
agency did not know when his period of incapacity ended (if it did) because he
had been unable to work before the agency took the removal action that the Board
reversed, and he was either unable to work or absent without leave since his
restoration to duty. Id. at 5.
¶5 On August 22, 2023, the appellant filed a response to the agency’s
submission but did not explain which dates during the back pay period he was
unable to work. Much of his response was directed to his separate compensatory
damages appeals. CRF, Tab 2 at 4-5.
¶6 On September 5, 2023, the agency filed an additional pleading confirming
that the agency had paid the amount it owed the appellant in compensatory
damages but had not paid him back pay. CRF, Tab 4 at 4.
¶7 On December 15, 2023, the Board issued an Order instructing the appellant
to file a responsive pleading informing the Board and the agency of the specific
start and end dates between July 27, 2018, and February 7, 2023, that he was
unable to work. The order warned the appellant that if he failed to file such a
pleading, the Board might dismiss his petition for enforcement. CRF, Tab 5 at 2.3
To date, the appellant has not responded to this order or filed any other
submission.
ANALYSIS
¶8When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).
¶9As the agency correctly noted, the agency does not owe the appellant back
pay for time periods that he was not ready, able, and willing to work. E.g.,
Hodges v. Department of Justice , 121 M.S.P.R. 337, ¶ 23 (2014). The appellant
informed the agency that he was unable to work due to a surgery in February 2018
– several months before the back pay period commenced in July 2018. See CFR,
Tab 1 at 5. Despite multiple requests from the agency and DFAS, as well as the
Board’s December 2023 Order, the appellant has never informed the agency or
the Board when his period of incapacity ended (if it ever did) and which dates
during the back pay period he was and was not able to work.
¶10 In light of the appellant’s failure to cooperate with the agency’s attempt to
calculate his back pay, and his failure to respond to the Board’s order instructing
him to provide the necessary information, we find the agency in compliance and
dismiss the petition for enforcement. This is the final decision of the Merit4
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Butler_Timothy_W_DA-1221-19-0077-X-1__Final_Order.pdf | 2024-07-17 | TIMOTHY W BUTLER v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-1221-19-0077-X-1, July 17, 2024 | DA-1221-19-0077-X-1 | NP |
945 | https://www.mspb.gov/decisions/nonprecedential/Bryant_TonyCH-0752-20-0148-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONY BRYANT,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-20-0148-I-1
DATE: July 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
C. Mike Moulton , Esquire, Elizabethtown, Kentucky, for the appellant.
Timothy Harner , Esquire, and Whitney Alfred Campbell , Esquire, Fort
Knox, Kentucky, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed. 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 appeal to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was employed as a GS-7 Human Resources Assistant with
the agency. Initial Appeal File (IAF), Tab 4 at 22. On December 3, 2019, the
appellant was removed from his position, and thus had until January 2, 2020, to
file an appeal of his removal with the Board. Id. at 22-23; 5 C.F.R. § 1201.22(b).
Due to the Board’s record showing that the appellant filed his appeal on January
3, 2020, the administrative judge dismissed the appellant’s appeal as untimely
filed. IAF, Tab 11, Initial Decision (ID). Although the administrative judge
acknowledged that the appeal was only filed a day late, she found that absent a
showing of good cause, the timeliness requirement could not be waived. ID
at 3-4.
The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. With his petition, the appellant attaches a signed
statement by his previous attorney explaining the relevant events. Id. at 24.
According to the statement, the appellant retained the attorney on January 2,
2020, for the limited purposes of drafting his initial Board appeal. Id. Due to
technical difficulties with his email, the appellant was unable to receive and sign
the appeal; accordingly, the attorney faxed a copy of the unsigned appeal to the
regional office on January 2, 2020, to meet the filing deadline.2 Id. at 24-25. The
appellant also attaches to his petition for review a copy of the unsigned appeal,
which bears an automatically generated printing typically created when a
document is faxed—the printing shows that it was faxed to the fax number at the
Board’s Central Regional Office on January 2, 2020. Id. at 26-45. The attorney
further explained that, on January 3, 2020, he faxed a copy of the signed appeal to
2 Because the attorney was retained for the limited purpose of drafting the appeal, the
attorney did not file the appeal as the appellant’s representative. PFR, Tab 1 at 4-5,
24-25.2
the regional office to correct the previous filing’s deficiency. Id. at 25. The
January 3, 2020 signed appeal is the only copy of the appellant’s appeal included
in the Board’s record. IAF, Tab 1.
The agency has filed a response to the appellant’s petition for review. PFR
File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board's regulations provide that an appeal must be filed with the Board
no later than 30 days after the effective date of the agency's action, or 30 days
after the date of the appellant's receipt of the agency decision, whichever is later.
5 C.F.R. § 1201.22(b). The date of a filing submitted by facsimile transmittal is
determined by the date of the fax. 5 C.F.R. § 1201.4(l). The Board will waive
the filing deadline only upon a showing of good cause. 5 C.F.R. § 1201.22(c). In
this appeal, as discussed above, the administrative judge determined that the
appeal was filed 1 day late and the appellant failed to show good cause. ID
at 2-4.
Upon review of the record, we find that a remand is appropriate in this
matter because the evidence establishes that the appellant’s appeal was timely
filed and it was the regional office’s failure to adhere to the Board’s procedures
for processing appeals that resulted in the dismissal of the appellant’s appeal.
According to the Judge’s Handbook, when an appeal is received, the regional or
field office must review the appeal and determine whether it contains the
information required by 5 C.F.R. § 1201.24(a). Merit Systems Protection Board,
Judge’s Handbook 3, available at https://www.mspb.gov/appeals/files/
ALJHandbook.pdf . While deficiencies, such as a lack of signature, may be cause
for rejecting the appeal, the appeal should still be docketed as long as it contains
sufficient information. Id. at 3-4. If the office determines that it should reject the
appeal, then a standard rejection notice must be issued to the appellant identifying
the specific deficiency. Id. at 5, 8. Whether formally rejected or not, for the3
purposes of determining timeliness, the receipt date of the incomplete appeal is
considered the filing date of the appeal. Id.; Taylor v. Office of Personnel
Management, 73 M.S.P.R. 142, 143 (1997) (finding that the original filing of the
deficient submission was the filing date after the filing was returned by the
receiving office for a technical deficiency).
In this matter, the unsigned appeal faxed on January 2, 2020 had sufficient
information for the regional office to docket the appeal. PFR File, Tab 1
at 26-45. Indeed, the appeal contained everything listed in 5 C.F.R. § 1204.24(a)
except for the appellant’s signature. Id. While the regional office could have
rejected the appeal due to the lack of signature, if that was the route it decided
upon, it should have issued a rejection notice to the appellant, which it did not.
Judge’s Handbook at 5, 8.
In sum, the evidence establishes that the appellant faxed an incomplete
appeal to the regional office on January 2, 2020. PFR File, Tab 1 at 24-45.
Consistent with the Board’s practice, January 2, 2020, should be treated as the
filing date of the appellant’s appeal. Judge’s Handbook at 5, 8; Taylor,
73 M.S.P.R. 142, 143. Therefore, we find that the appeal was timely filed and
that the administrative judge erred in dismissing the appeal as untimely filed.3
Our finding in this appeal is similar to our reasoning in Gordon v.
Department of the Air Force, 104 M.S.P.R. 358, ¶ 5 (2006). In Gordon, the
Board remanded an appeal that was dismissed for failure to prosecute after the
appellant missed several deadlines and conferences scheduled by the
administrative judge. Id., ¶ 2-3. Upon review, the Board determined that the
regional office failed to serve the appellant in the manner he elected, serving him
3 The agency argues in its response to the petition for review that the Board should not
consider the evidence presented by the appellant on review because he did not establish
that this evidence was unavailable before the record closed. PFR File, Tab 4. Pursuant
to 5 C.F.R. § 1201.115(e), the Board has the authority to consider any argument on
appeal. Because the appellant’s rights were substantively prejudiced by an error
committed by the regional office, we do not believe the timing of the submission of the
evidence should control the outcome of this matter.4
via mail as opposed to electronically. Id., ¶ 5. The Board found that the regional
office’s failure to adhere to Board regulations prejudiced the appellant. Id. As a
result, the Board remanded the appeal to the regional office for processing. Id.,
¶ 6. We find that a remand is appropriate here for the same reasons.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication as a timely filed appeal in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Bryant_TonyCH-0752-20-0148-I-1__Remand_Order.pdf | 2024-07-17 | TONY BRYANT v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-20-0148-I-1, July 17, 2024 | CH-0752-20-0148-I-1 | NP |
946 | https://www.mspb.gov/decisions/nonprecedential/Hoffman_MikeDE-0752-18-0221-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MIKE HOFFMAN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-0752-18-0221-C-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Peter C. Myers , Joint Base Andrews, Maryland, for the agency.
Timothy K. Dinin , Kirtland Air Force Base, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement of a settlement agreement.
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 compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant reasserts his argument that he timely
filed his petition for enforcement within 30 days after the agency’s affirmative
assertion on February 13, 2020, that it would not be submitting a request for his
lump-sum payment of $50,000.00. Compliance Petition for Review (CPFR) File,
Tab 1 at 12-17; Compliance File (CF), Tab 17 at 9-14. The appellant further
reasserts his arguments that the agency breached paragraph II(B) of the settlement
agreement by failing to provide reasonable assistance to him in the preparation of
his application for immediate retirement and that the Board should order
enforcement by specific performance. CPFR File, Tab 1 at 17-24; CF, Tab 1
at 10-11, Tab 17 at 14-21. We find that the administrative judge adequately
addressed these arguments in the compliance initial decision in determining that
the appellant’s petition for enforcement was untimely filed and that the agency
did not breach paragraph II(B) of the settlement agreement. CF, Tab 19,
Compliance Initial Decision (CID) at 4-8.2 Therefore, after considering the
2 We agree with the administrative judge’s finding that the issue of mootness (i.e.,
whether an order of performance would bring further benefit to the appellant) does not
need to be resolved because the agency did not breach the settlement agreement. CID2
appellant’s arguments on review and reviewing the record, we discern no reason
to disturb the compliance initial decision.
Accordingly, we affirm the compliance initial decision denying the
appellant’s petition for enforcement of a settlement agreement.
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).
at 7-8.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with 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 | Hoffman_MikeDE-0752-18-0221-C-1__Final_Order.pdf | 2024-07-17 | MIKE HOFFMAN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-0752-18-0221-C-1, July 17, 2024 | DE-0752-18-0221-C-1 | NP |
947 | https://www.mspb.gov/decisions/nonprecedential/Colosi_Paul_M_NY-3443-20-0180-I-1_NY-0841-20-0182-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL M. COLOSI,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
NY-3443-20-0180-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul M. Colosi , Phoenixville, Pennsylvania, pro se.
Tasha Gibbs , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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.2
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you3
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 4
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Colosi_Paul_M_NY-3443-20-0180-I-1_NY-0841-20-0182-I-1_Final_Order.pdf | 2024-07-17 | PAUL M. COLOSI v. DEPARTMENT OF JUSTICE, MSPB Docket No. NY-3443-20-0180-I-1, July 17, 2024 | NY-3443-20-0180-I-1 | NP |
948 | https://www.mspb.gov/decisions/nonprecedential/Dillon_Amy_A_DC-3443-23-0690-I-1_DC_0432_23_0381_I_1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY A. DILLON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-3443-23-0690-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Karen M. Hertz , Esquire, Melville, New York, for the appellant.
Angela Kreitzer and Kelly A. Smith , Washington, D.C, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. On petition for review, the
appellant argues the merits of 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Dillon_Amy_A_DC-3443-23-0690-I-1_DC_0432_23_0381_I_1_Final_Order.pdf | 2024-07-17 | AMY A. DILLON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-3443-23-0690-I-1, July 17, 2024 | DC-3443-23-0690-I-1 | NP |
949 | https://www.mspb.gov/decisions/nonprecedential/Damron_Christopher_M_CH-0752-20-0442-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER M. DAMRON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-20-0442-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher M. Damron , Ashland, Kentucky, pro se.
Marie Clarke , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of his 3-day suspension. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
It is well settled that the Board lacks jurisdiction over suspensions of
14 days or fewer. See 5 U.S.C. §§ 7512(2), 7513(d); Stewart v. Department of
Defense, 82 M.S.P.R. 649, ¶ 15 (1999). Here, the appellant ostensibly contends
that the Board has jurisdiction over his 3-day suspension because the agency
discriminated against him “because of a mental and physical disability.” Petition
for Review (PFR) File, Tab 1 at 5.2 He also seemingly avers that the Board has
jurisdiction because he was “retaliated against” after he “brought forth [issues]
concerning safety.” Id. These contentions do not warrant a different outcome.
Absent an otherwise appealable action, the Board lacks jurisdiction over the
appellant’s claims of discrimination. See Wren v. Department of the Army ,
2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under
2 The appellant provides documents with his petition for review. PFR File, Tab 1
at 7-11. All of these documents, however, were part of the record before the
administrative judge; thus, they do not constitute new evidence. See Meier v.
Department of the Interior , 3 M.S.P.R. 247, 256 (1980 ) (explaining that evidence that is
already a part of the record is not new). Moreover, none of the documents contain
information material to the outcome of the jurisdictional issue. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980 ) (explaining that the Board generally will
not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision). 2
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).
Because the appellant did not discernably allege whistleblower reprisal
prior to the issuance of the initial decision, the administrative judge did not
inform him of the applicable burden of proof with respect to establishing Board
jurisdiction for individual right of action appeals pursuant to 5 U.S.C. § 1221.
See Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir.
1985). The Board has jurisdiction over such appeals only if, among other things,
the appellant has exhausted his administrative remedies before the Office of
Special Counsel (OSC). Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 9 (2011). Here, there is nothing in the record to suggest that
the appellant has exhausted his OSC administrative remedies; indeed, he
indicated in his petition for review that he has not filed a complaint with OSC.
PFR File, Tab 1 at 4; see Simnitt v. Department of Veterans Affairs , 113 M.S.P.R.
313, ¶ 8 (2010) (explaining the specific requirements of exhaustion).
Accordingly, we discern no basis for Board jurisdiction at this time. Should the
appellant exhaust his administrative remedies with OSC, he may file a separate
appeal in this regard. See 5 U.S.C. §§ 1221, 1214; 5 C.F.R. part 1209.
Accordingly, we affirm the initial decision. 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Damron_Christopher_M_CH-0752-20-0442-I-1__Final_Order.pdf | 2024-07-17 | CHRISTOPHER M. DAMRON v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-20-0442-I-1, July 17, 2024 | CH-0752-20-0442-I-1 | NP |
950 | https://www.mspb.gov/decisions/nonprecedential/Chambers_Lorraine_D_DA-1221-20-0094-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORRAINE D. CHAMBERS,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DA-1221-20-0094-W-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorraine D. Chambers , Fort Worth, Texas, pro se.
Marcus R. Patton , Anju V. Mathew , Esquire, Sakeenda M. Adams , and
Mary C. Merchant , Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in connection with her individual right of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
action (IRA) appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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, an Equal Opportunity Specialist, filed an IRA appeal in
which she alleged that the agency took several personnel actions against her in
retaliation for her numerous protected disclosures. Initial Appeal File (IAF),
Tab 1. After consideration of the parties’ written submissions, the administrative
judge found that the appellant had established the Board’s jurisdiction over her
appeal.2 IAF, Tab 19. Following the requested hearing, the administrative judge
issued an initial decision in which he found that the appellant made two protected
disclosures, specifically, that she reasonably believed that: she disclosed a
2 The administrative judge did not make a specific finding that the appellant had
exhausted her remedy before the Office of Special Counsel (OSC), but rather found
Board jurisdiction over the appeal. IAF, Tab 53, Initial Decision at 1. We find that the
matters deemed at issue by the administrative judge fully comport with those described
in the appellant’s OSC complaint and OSC’s closure letter, thereby establishing
exhaustion. To the extent the administrative judge erred by not specifically addressing
exhaustion, his error did not prejudice either party’s substantive rights. Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984 ).2
violation of the Privacy Act when she confronted her first- and second-line
supervisors regarding a conversation they had in which she overheard them
discussing her prior EEO complaint and her medical issues, and she disclosed a
conflict of interest when she reported that a city of Fort Worth employee with
whom she worked had taken action related to the needs of her disabled brother
that impacted her objectivity in the performance of her official duties. IAF,
Tab 53, Initial Decision (ID) at 13-15. The administrative judge next found that
the appellant showed that her two protected disclosures were contributing factors
in four of her claimed personnel actions. ID at 15-26. Those four actions were
assigning her as a Government Technical Monitor, subsequently removing her
from that assignment, failing to timely promote her to GS-12, and rating her as
fully successful for fiscal year 2018. Finally, the administrative judge found that
the agency showed by clear and convincing evidence that it would have taken
those same personnel actions in the absence of the appellant’s protected
disclosures. ID at 26-32. Accordingly, the administrative judge denied the
appellant’s request for corrective action. ID at 2, 32.
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.
ANALYSIS
On review, the appellant challenges most, if not all, of the administrative
judge’s factual findings and credibility determinations. We have considered the
appellant’s arguments on review, but we discern no reason to reweigh the
evidence or substitute our assessment of the record evidence for that of the
administrative judge. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06
(1997) (finding no reason to disturb the administrative judge’s findings when he
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). For example, the appellant argues that the3
administrative judge failed to consider the testimony of certain of her witnesses.
PFR File, Tab 1 at 8, 14. However, t he administrative judge’s failure to mention
all of the evidence of record does not mean that he did not consider it in reaching
his decision. See Marques v. Department of Health & Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Nonetheless, we have considered the testimony of the witnesses to which the
appellant refers and find that it does not change the propriety of the
administrative judge’s findings.3 The appellant also challenges the administrative
judge’s credibility determinations, particularly as they relate to the appellant’s
first-line supervisor. PFR Tab 1 at 7, 12. The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of the 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). We have considered the appellant’s allegations but find that they do
not provide sound reasons to overturn the administrative judge’s findings.4
3 The appellant’s argument largely relates to her claim that the administrative judge
erred in finding that she failed to prove that, because of actions taken by her supervisor,
she was subjected to a hostile work environment. ID at 21-26. We have reviewed the
testimony of the appellant’s coworkers, Hearing Transcript at 12, 57, 125, and find that,
even if that testimony could be considered as indicating an unpleasant and unsupportive
work environment for the appellant, it does not establish the kind of pervasive
objectionable behavior that indicates a significant change of working conditions
sufficient to constitute a hostile work environment, 5 U.S.C. § 2302(a)(2)(A)(xii), or
otherwise show error in the administrative judge’s finding.
4 The appellant argues generally that there was no hearing but rather a Zoom call, where
the witnesses could only be observed “chest up,” thereby precluding the administrative
judge from being able to assess their demeanor. PFR File, Tab 1 at 11. However, there
is no statutory mandate for an unlimited entitlement to an in-person hearing. Koehler v.
Department of the Air Force , 99 M.S.P.R. 82, ¶ 10 (2005). The administrative judge
explained early on that the requested hearing would be conducted by Zoom for
Government. IAF, Tabs 20, 33. The appellant did not challenge the manner in which
the hearing would be conducted at that time, or during the hearing. Her failure to do so
then precludes her doing so on review. See Tarpley v. U.S. Postal Service , 37 M.S.P.R.
579, 581 (1988 ). Moreover, in connection with the broad discretion afforded
administrative judges to control proceedings at which they officiate, 5 C.F.R.4
The appellant also argues on review that the administrative judge erred in
denying certain of the witnesses she requested. PFR File, Tab 1 at 13, 21.
However, despite being afforded the opportunity to do so, the appellant did not
challenge the administrative judge’s witness rulings and therefore may not
challenge them on review. See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579,
581 (1988). In addition, the appellant argues that the administrative judge did not
clarify the issues, even though he knew she was a layperson. PFR File, Tab 1
at 21. The appellant was informed of her right to obtain legal representation,
IAF, Tab 1 at 1, Tab 2 at 2, and having chosen to proceed without representation,
she must accept the consequences of that decision, see Yanopoulos v. Department
of the Navy, 796 F.2d 468, 470 (Fed. Cir. 1986); Brum v. Department of Veterans
Affairs, 109 M.S.P.R. 129, ¶ 5 (2008). Moreover, our review of the hearing
record reflects that the administrative judge at all times exhibited appropriate
judicial demeanor, was patient and respectful, and, contrary to the appellant’s
claims, did clarify various matters, including his rulings, posed questions to her,
and answered questions she raised.
The appellant claims several times in her petition for review that she
advised the administrative judge that she was in possession of taped recordings
that contained evidence material to the issues in this appeal, but that he directed
that, in order for the recordings to be considered, they must be transcribed. The
appellant further argues that, because the administrative judge’s ruling occurred
during the COVID-19 crisis, she was unable to comply with it, and that his ruling
was harmful, prejudicial, and destructive to her case. PFR File, Tab 1 at 7, 10,
18, 21. In a summary of the prehearing conference, the administrative judge
stated that the appellant indicated that, due to the pandemic, she had experienced
difficulty in obtaining transcripts of relevant audio recordings, but that she did
not want to delay the processing of the appeal due to that difficulty. IAF, Tab 43
§ 1201.41(b), they may hold videoconference hearings in any case, even if the appellant
objects. Koehler, 99 M.S.P.R. 82, ¶ 13. 5
at 6. The appellant does not, in her petition for review, deny the administrative
judge’s statement that she agreed to proceed with the hearing without the
transcripts. Moreover, although afforded the opportunity to do so, id. at 7, the
appellant did not challenge the administrative judge’s ruling regarding the taped
recordings,5 and her apparent willingness to accept the administrative judge’s
ruling below precludes her challenging it on review. See Tarpley, 37 M.S.P.R.
at 581.
The appellant argues that she was also hampered during the processing of
the appeal because she did not know, until just before the hearing, that she would
have to formally move for the admission of documents that she had submitted to
the Board. PFR File, Tab 1 at 8. However, in his summary of the prehearing
conference, the administrative judge clearly notified the parties that such would
be the case. IAF, Tab 43 at 6. The appellant did not question the administrative
judge’s statement and therefore cannot be heard to challenge it on review. See
Tarpley, 37 M.S.P.R. at 581. The appellant argues that she has also been
hampered because she has not received a copy of the transcript “or anything
associate [sic] with cost to receive the copy . . . .” PFR File, Tab 1 at 16, 20.
The Board’s regulations provide that any party may request that the court reporter
prepare a full or partial transcript, at the requesting party’s expense. 5 C.F.R.
§ 1201.53(b). To the extent the appellant believed that she needed a copy of the
transcript to prepare her petition for review, she has not shown that she made
such a request.
Finally, the appellant argues on review that, since the hearing, the agency’s
retaliation against her has escalated, and that she has been written up for not
contacting her supervisor when she went into the office to pack up her work
station for an instructed office move. PFR File, Tab 1 at 22. The Board lacks
jurisdiction to consider this matter because the appellant has not shown, or even
5 The administrative judge did provide the appellant an additional week in which to
submit the transcripts of the taped recordings, but she failed to do so. IAF, Tab 43 at 6.6
alleged, that she exhausted this claim before the Office of Special Counsel (OSC).
As the administrative judge advised the appellant, IAF, Tab 3, to establish Board
jurisdiction over an IRA appeal, the appellant must show that she exhausted her
remedy before OSC and make nonfrivolous allegations that: (1) she made a
protected disclosure or engaged in protected activity, and (2) the disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action. Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371
(Fed. Cir. 2001). After the appellant exhausts her remedy with OSC as to this
issue, she may file an IRA appeal with the Board.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you8
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Chambers_Lorraine_D_DA-1221-20-0094-W-1__Final_Order.pdf | 2024-07-17 | LORRAINE D. CHAMBERS v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DA-1221-20-0094-W-1, July 17, 2024 | DA-1221-20-0094-W-1 | NP |
951 | https://www.mspb.gov/decisions/nonprecedential/Franklin_Samuel_L_AT-0752-19-0050-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL L. FRANKLIN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-19-0050-I-1
DATE: July 17, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amanda Brookhuis , Esquire, Atlanta, Georgia, for the appellant.
Kenneth William , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
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 sustained his reduction in
pay and grade. Generally, we grant petitions such as these 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 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).
BACKGROUND
The appellant was a General Schedule (GS) 14 Supervisory Operations
Support Specialist with the U.S. Citizenship and Immigration Services. Initial
Appeal File (IAF), Tab 5 at 14, 18. Effective September 30, 2018, the agency
demoted him to the position of GS-12 Operations Support Specialist. Id. The
demotion was proposed for a single charge of neglect of duty with 19
specifications. Id. at 50-57. The deciding official sustained all specifications
except specification 17. Id. at 18. Specifications 1-16 and 18 described the
appellant’s failure to issue: correct performance plans for Fiscal Year (FY) 2017
to various subordinates (specifications 1-10); FY 2017 mid-cycle reviews to
subordinates (specifications 11-14); FY 2017 mid-cycle reviews and/or
interim/departure reviews for other subordinates (specifications 15-16); and a
timely FY 2017 performance plan to a new subordinate (specification 18). Id
at 50-52. In specification 19, the agency alleged that he failed to properly2
supervise subordinates during a property inventory. Id. at 52. The deciding
official demoted the appellant, effective September 30, 2018. Id. at 18-23.
This appeal followed, with the appellant arguing that the agency failed to
prove any of its specifications, that the demotion was taken because of his race,
color, sex, disability, and prior equal employment opportunity (EEO) activity, and
that the penalty was unreasonable. IAF, Tab 1 at 8-10, Tab 17 at 7. The
appellant withdrew his request for a hearing. IAF, Tab 24 at 4. During the
pendency of the appeal, the agency withdrew specifications 11-14. IAF, Tab 25
at 5.
On September 13, 2019, the administrative judge issued his initial decision,
affirming the demotion. IAF, Tab 30, Initial Decision (ID) at 16. In pertinent
part, the administrative judge found that the agency proved specifications 1 -10,
15-16, and 18, the agency failed to prove specification 19, the appellant failed to
prove his affirmative defenses of race, color, sex, and disability discrimination,
and EEO retaliation, and the agency established both nexus and the
reasonableness of the penalty. ID at 4-15.
The appellant filed a petition for review, arguing that the administrative
judge erred in sustaining specifications 16 and 18. Petition for Review (PFR)
File, Tab 1 at 4-5. Regarding specifications 1-10, the appellant contends that an
agency witness lacked credibility. Id. at 6. The appellant also submits, for the
first time on review, evidence purportedly pertaining to specifications 1-11
and 13-16 and an argument regarding a comparator who was not disciplined. Id.
at 3-6, 9-13. He requests reinstatement, backpay, compensatory damages, and
attorney fees, among other things. Id. at 7.
The agency filed a response to the petition for review and a cross petition
for review. PFR File, Tab 3. In its cross petition for review, the agency contends
that the administrative judge erred by not sustaining specification 19. Id. at 4,
17-22. The appellant filed a reply to the cross petition for review. PFR File,
Tab 5.3
DISCUSSION OF ARGUMENTS ON REVIEW
We decline to consider the appellant’s evidence submitted for the first time on
review because he has failed to show that it was previously unavailable despite
his due diligence.
The appellant asserts on review that he has new and material evidence.
PFR File, Tab 1 at 3-4, 9-13. Under 5 C.F.R. § 1201.115, the Board generally
will not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record was closed despite the
party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980). The appellant has not met this burden.
For example, the appellant submits a May 2017 email chain regarding the
reassignment of certain subordinates identified in specifications 11 and 13-16 out
of his supervisory authority. PFR File, Tab 1 at 3-4, 9-10. The appellant asserts
that this email was not disclosed during discovery and that he was previously
unaware of its existence. Id. at 3. However, the appellant was the recipient of, or
carbon copied on, each of the three emails in the email chain. Id. at 9-10.
Accordingly, we find that the appellant has failed to show that the May 17 email
was previously unavailable despite his due diligence, and we decline to consider
it.2
Additionally, regarding specifications 1-10, the appellant alleges that the
proposing official lacked credibility and misled the Board when he said in his
affidavit that the appellant was directly responsible for the delay of
performance-based awards for the employees at issue in those specifications. Id.
at 6. However, the only evidence to which the appellant cites is the May 2017
email chain. Id. at 6, 9-10. Because, for the reasons discussed above, we decline
to consider that evidence, we similarly decline to consider the appellant’s
argument based on that evidence.3 Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d).
2 As noted above, the agency did not pursue specifications 11-14, so any evidence
relating to specifications 11 and 13 is not material.4
The appellant also submits, for the first time on review, statements from
former subordinates at issue in specifications 3-5, dated between October 8, 2019,
and October 14, 2019, which he appears to utilize to challenge the administrative
judge’s decision to sustain these specifications and to assert that the agency
treated him more harshly than other similarly situated employees.4 PFR File,
Tab 1 at 4, 11-13. 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). Though
the appellant avers that some of the statements were “newly acquired,” he does
not assert that the information contained in them was previously unavailable
despite his due diligence. PFR File, Tab 1 at 4. Accordingly, we decline to
consider these statements.
We agree with the administrative judge that the agency proved
specifications 1 - 10, 15-16 and 18, and we find that the agency proved the neglect
of duty charge.
On review, the appellant only challenges the administrative judge’s
assessment of specifications 16 and 18 of the neglect of duty charge.5 PFR File,
Tab 1 at 4-5. We review each in turn.
Specification 16 alleged that the appellant, in approximately April 2017,
failed to issue a FY 2017 mid-cycle review or any interim/departure review to a
3 Even if we considered this evidence, we discern nothing in the May 2017 email chain
that calls into question whether, in October 2016, the appellant failed to issue correct
FY 2017 employee performance plans to his subordinates.
4 In the initial decision, the administrative judge addressed the appellant’s argument
regarding comparators as pertaining to his affirmative defense of EEO retaliation rather
than the issue of penalty. ID at 13. However, on petition for review, the appellant
states that he is aware of other supervisors who delayed providing performance
expectations, which resulted in delayed appraisals and delayed performance awards, but
the supervisors were not demoted. PFR File, Tab 1 at 5-6. We will consider this
argument in our analysis of the penalty below, but a different finding is not warranted.
5 The appellant does not otherwise challenge the administrative judge’s findings that the
agency proved specifications 1 -10 and 15. We discern no error with the administrative
judge’s findings, which appear to reflect a thorough review of the record and the correct
application of the law, and therefore sustain these specifications. 5
subordinate when the subordinate transferred to another position. IAF, Tab 5
at 51. The appellant argues that he was not responsible for issuing a review of
the subordinate because he (the subordinate) transferred to another supervisor’s
authority. PFR File, Tab 1 at 5. In such a situation, the agency’s policy provides
that the supervisor losing the employee was to execute an interim evaluation on
the employee’s current performance plan. IAF, Tab 29 at 29. There is no dispute
that the appellant did not execute such an interim evaluation when the employee
left. IAF, Tab 16 at 20. Instead, the appellant asserts that the policy was a
suggestion rather than a requirement. PFR File, Tab 1 at 5. However, because
nothing in the written policy indicates that its instructions were optional rather
than mandatory, and the appellant cites no support for his assertion, we find his
assertion to be without merit. Accordingly, we sustain specification 16.
Specification 18 alleged that, in approximately August 2017, the appellant
failed to issue a timely FY 2017 performance plan to a subordinate. IAF, Tab 5
at 51. Again, the appellant argues that he was not responsible for issuing such a
performance plan to the subordinate because the subordinate transferred from
another office on August 7, 2017. PFR File, Tab 1 at 4-5. In such a situation, the
agency’s policy provides that the new employee’s supervisor was to, inter alia,
place the employee on a performance plan within 30 days of employment. IAF,
Tab 29 at 29. There is no dispute that the appellant was the supervisor of the
employee at issue and did not issue her a performance plan within 30 days after
she transferred under him. Accordingly, we sustain specification 18.6
Although not clearly stated as such in the initial decision, we also
explicitly sustain the neglect of duty charge. See Payne v. U.S. Postal Service ,
6 We find it unnecessary to address the agency’s arguments regarding specification 19
because, as discussed below, we find that the penalty of demotion is within the bounds
of reasonableness based on the remaining sustained specifications. See Gray v.
Government Printing Office , 111 M.S.P.R. 184, ¶ 17 (2009) (finding it unnecessary to
address the appellant’s argument that the administrative judge erred by sustaining the
third charge when two other sustained charges warranted the removal penalty). We
therefore deny the cross petition for review.6
72 M.S.P.R. 646, 650 (1996) (finding that it is well settled that proof of only one
specification supporting a charge is sufficient to prove the charge).
The administrative judge correctly found that the appellant did not prove his
affirmative defenses.
To prove a claim of discrimination or retaliation under Title VII of the
Civil Rights Act of 1964, or a claim of discrimination under the Rehabilitation
Act of 1973, an appellant must show that the prohibited consideration was at least
a motivating factor in the agency’s action or decision. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30, 42. In his initial
decision, the administrative judge considered the evidence as a whole as it related
to the appellant’s claims of race, color, sex, and disability discrimination, and his
claim of retaliation for activity protected under Title VII, and he found that the
appellant did not meet the motivating factor standard with respect to any of these
claims. ID at 10-14. On petition for review, the appellant requests
“compensatory damages for his distress because of the Agency’s retaliatory
actions,” PFR File, Tab 1 at 9, but he does not otherwise contest the
administrative judge’s analysis of his affirmative defenses. For the reasons
explained in the initial decision, we agree with the administrative judge that the
appellant did not prove that any prohibited consideration was a motivating factor
in his demotion. ID at 10-14. We agree that the demotion penalty is within the
bounds of reasonableness based on the sustained specifications and charge.7
When all of the agency’s charges are sustained, but not all of the
underlying specifications are sustained, the agency’s penalty determination is
entitled to deference and should be reviewed only to determine whether it is
within the parameters of reasonableness. Payne, 72 M.S.P.R. at 650. In applying
this standard, however, the Board must take into consideration the failure of the
7 The appellant does not challenge the administrative judge’s finding that the agency
established nexus. ID at 10; PFR File, Tab 1. Because the offense at issue involved the
appellant’s performance of his duties, occurred at work, and involved his coworkers, we
discern no reason to disturb that finding and therefore affirm it.7
agency to prove all of its supporting specifications. Id. at 651. That failure may
require, or contribute, to a finding that the agency’s penalty is not reasonable.8
Id.
In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the
Board articulated a nonexhaustive list of twelve factors that are relevant in
assessing the appropriate penalty for an act of misconduct. These so-called
Douglas factors include, among other things, the nature and seriousness of the
offense, the appellant’s job level, his past disciplinary record, his past work
record, the consistency of the penalty with those imposed upon other employees
for the same or similar offenses, the clarity with which he had been warned about
the conduct in question, and mitigating circumstances surrounding the offense.
Id.
In the initial decision, the administrative judge found that the deciding
official properly weighed the relevant Douglas factors in demoting the appellant
and that the demotion did not exceed the bounds of reasonableness. ID at 15;
IAF, Tab 5 at 19-20. We agree with the administrative judge’s and deciding
official’s assessment of the relevant Douglas factors.
On review, the appellant argues that the penalty of demotion is unwarranted
based on the nature and seriousness of specifications 16 and 18. PFR File, Tab 1
at 4-5. In particular, the appellant indicates that specifications 16 and 18 are not
8 In analyzing the reasonableness of the penalty, the administrative judge utilized the
standard generally applied when all of an agency’s charges are sustained, under which
the Board will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. ID at 14-15 (citing Wentz v. U.S. Postal Service ,
91 M.S.P.R. 176, ¶ 13 (2002)). However, despite using this standard, the administrative
judge’s analysis reflects that he upheld the penalty solely on the basis of the sustained
specifications and relevant mitigating and aggravating factors. The appellant does not
raise this issue on review, and we find that any adjudicatory error in this regard is
harmless. 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).8
serious because they did not have any direct impact on the subordinates’ final
rating. Id. We have considered the appellant’s arguments, but we do not agree.
In assessing the reasonableness of a penalty, the Board places primary
importance upon the nature and seriousness of the offense and its relation to the
appellant’s duties, position, and responsibilities, including whether the offense
was intentional, frequently repeated, or for gain. Arena v. U.S. Postal Service ,
121 M.S.P.R. 125, ¶ 6 (2014), aff’d, 617 F. App’x 996 (Fed. Cir. 2015) (Table) .
In contrast to the appellant’s allegations on review, we find that his misconduct is
sufficiently serious to support the chosen penalty. In an affidavit made under
penalty of perjury, the deciding official stated that the appellant’s neglect of duty
regarding specifications 1-10 caused those subordinates at issue to have their
performance periods extended by 90 days into FY 2018, delaying their ratings and
any performance awards based on their ratings. IAF, Tab 29 at 48. She stated
that the appellant’s repeated neglect of duty was “very serious.” Id. at 47. She
indicated that the appellant’s failures related to his responsibilities as a supervisor
and averred that she would have demoted the appellant based on
specifications 1-10 alone. Id. at 47-48. Considering the nature of these
specifications, their relation to the appellant’s responsibilities as a supervisor,
and their impact upon his subordinates, we agree with the deciding official that
the sustained specifications are serious.
On petition for review, the appellant provides a September 26, 2019
notarized witness statement from a Human Resources employee, which the
appellant states validates his claim that other subordinates did not receive
performance plans and appraisals. PFR File, Tab 1 at 6, 13. He asserts that the
deciding official demoted him but failed to demote N.B. for failing to issue any
performance expectations to another subordinate. Id. at 6. Although we noted
above that the appellant does not explain why he did not provide the information
contained in this statement to the administrative judge, we would still affirm the
demotion penalty even if we considered this evidence. The Board has held that9
the relevant inquiry as far as consistency of the penalty is concerned is whether
the agency knowingly and unjustifiably treated similarly situated employees
differently. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 14. The appellant’s
assertion on review is directly contradicted by the deciding official’s affidavit
made under penalty of perjury in which she states that she was “not aware of any
supervisor who failed to issue correct [employee performance plans] with
performance goals to subordinates.” IAF, Tab 29 at 46, 49, 53. N.B. also
submitted an affidavit made under penalty of perjury in which he specifically
denied failing to timely or correctly issue employee performance plans to his
subordinates. Id. at 69-70. Accordingly, we are not persuaded that the agency
knowingly or unjustifiably treated similarly situated employees differently.
Because we affirm the demotion penalty, we deny the appellant’s requests
for relief.
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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. 10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you11
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 12
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Franklin_Samuel_L_AT-0752-19-0050-I-1__Final_Order.pdf | 2024-07-17 | SAMUEL L. FRANKLIN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-19-0050-I-1, July 17, 2024 | AT-0752-19-0050-I-1 | NP |
952 | https://www.mspb.gov/decisions/nonprecedential/Wilson_Pamela_AT-0752-19-0560-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA WILSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-19-0560-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamela Wilson , Snellville, Georgia, pro se.
Kenneth William , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The agency has filed a petition for review of the initial decision that
mitigated the appellant’s removal to a 30-day suspension. Generally, we grant
petitions such as this 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).
2
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).
ORDER
We ORDER the agency to cancel the appellant’s removal and substitute in
its place a 30-day suspension effective May 25, 2019. 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.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the 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.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
3
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).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
4
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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. | Wilson_Pamela_AT-0752-19-0560-I-1__Final_Order.pdf | 2024-07-16 | PAMELA WILSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-19-0560-I-1, July 16, 2024 | AT-0752-19-0560-I-1 | NP |
953 | https://www.mspb.gov/decisions/nonprecedential/Kelly_Anne_C_DC-0752-18-0576-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNE C. KELLY,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-0752-18-0576-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anne C. Kelly , Ellicott City, Maryland, pro se.
Rolando N. Valdez , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
provide additional support for the administrative judge’s findings on the
appellant’s disability discrimination and equal employment opportunity (EEO)
retaliation claims, we AFFIRM the initial decision.
BACKGROUND
¶2The agency removed the appellant from her Information Technology
Specialist position based on the following charges: (1) Providing Inaccurate
Information on Your Timecards (27 specifications); (2) Inappropriate Behavior (7
specifications); and (3) Failure to Follow Supervisory Instructions (24
specifications). Initial Appeal File (IAF), Tab 1 at 175-82, Tab 10 at 7, Tab 12
at 15-30. The agency based the Inappropriate Behavior charge on the content of
several emails the appellant sent to her supervisor and the Failure to Follow
Supervisory Instructions charge on her failure to complete an assignment by a
deadline date and failure to send email messages to the division’s staff indicating
when she ended her work day while telecommuting. IAF, Tab 12 at 15, 20-24.
¶3On appeal, the appellant challenged the action and asserted disability
discrimination based on disparate treatment, disparate impact, and a failure to
reasonably accommodate her disability, sex discrimination based on a hostile
work environment, retaliation for EEO activity, whistleblower reprisal, a due
process violation, harmful error, and violations of the Family and Medical Leave2
Act of 1993 (FMLA) and the Telework Enhancement Act. IAF, Tab 16, Tab 22
at 6, 23, Tab 35.
¶4Based on the written record because the appellant withdrew her request for
a hearing, IAF, Tabs 34-35, the administrative judge sustained the removal
action, IAF, Tab 44, Initial Decision (ID) at 1, 64. The administrative judge
found that the agency proved 26 of the 27 specifications supporting the charge of
Providing Inaccurate Information on Your Timecards, all 7 of the specifications
supporting the charge of Inappropriate Behavior, and all 24 of the specifications
supporting the charge of Failure to Follow Supervisory Instructions. ID at 11-34.
The administrative judge further found that the appellant did not prove disability
or sex discrimination, retaliation for EEO activity, reprisal for whistleblowing, a
violation of due process, harmful error, or a violation of the FMLA or the
Telework Enhancement Act. ID at 34-60. Finally, the administrative judge found
that the agency proved a nexus between the misconduct and the efficiency of the
service and that the penalty of removal was reasonable. ID at 60-64.
ANALYSIS
¶5The appellant’s petition for review focuses on whether the agency
discriminated against her by failing to accommodate her disability, discriminated
against her based on sex, retaliated against her for engaging in EEO activity, and
violated the FMLA and Telework Enhancement Act. Petition for Review (PFR)
File, Tab 1 at 5-17. The appellant also challenges the reasonableness of the
penalty. Id. at 17-20. Accordingly, we address these allegations.2 We affirm all
of the administrative judge’s findings, modifying her analysis as to the
appellant’s disability discrimination and EEO retaliation claims.
2 We decline to disturb the administrative judge’s findings that the agency proved its
charges and a nexus between the charges and the efficiency of the service, and that the
appellant did not prove reprisal for whistleblowing, harmful error, or a due process
violation. The appellant does not dispute these findings on review. See 5 C.F.R.
§ 1201.115 (providing that the Board will consider only issues raised in a timely filed
petition or cross petition for review).3
The appellant has not proven disability discrimination .
¶6The administrative judge found that, although the appellant was disabled
due to her depression and bipolar disorder, she did not assert that the agency
denied her a reasonable accommodation, but instead alleged that her requested
accommodation of telework was effectively denied because it was delayed by
2½ months.3 ID at 36, 39-42. The administrative judge held that any delay was
not unnecessary or unreasonable because the agency was entitled to request
supporting medical documentation for the appellant’s conditions, which were not
obvious, the agency worked to evaluate the request in an expeditious manner after
she submitted medical documentation, and the agency was entitled to obtain
signed and dated medical documentation from a medical provider. ID at 38-43.4
¶7The appellant challenges the administrative judge’s finding that the delay
was reasonable in part because the agency purportedly sought an independent
medical review after the appellant submitted medical documentation on
January 23, 2017. PFR File, Tab 1 at 5-6. The appellant contends that she did
not submit medical documentation on that date and an independent medical
review did not occur at that time. Id. The appellant asserts that the only
communication she had with the agency on January 23, 2017, involved her
representative informing the agency that the information it sought had already
3 The administrative judge did not address whether the appellant was a qualified
individual with a disability. ID at 38-43; see Haas v. Department of Homeland
Security, 2022MSPB 36, ¶¶ 28-29.
4 The administrative judge acknowledged that the agency could have provided an
interim accommodation, but states that “doing so was complicated by the appellant’s
recent telework revocation, which was effective on November 29, 2016.” ID at 41. We
are skeptical that this is an adequate justification for not offering the appellant an
interim telework accommodation in December 2016. Even if the appellant was
ineligible for telework under the agency’s general policy, this would not be a sufficient
basis for the agency to deny her telework as an accommodation. See Natalie S. v.
Department of Veterans Affairs , EEOC Appeal Nos. 0120140815, 0120142049, 2018
WL 703733 at *13-*14 (January 26, 2018). Nevertheless, because the appellant has not
shown that any failure to accommodate was causally related to her removal, the issue of
interim accommodation is ultimately immaterial. See infra, ¶ 11; 5 U.S.C. § 7701(c)(2)
(B).4
been provided, and the only independent medical review occurred in July 2017
after she requested a change in her accommodation from part-time to full-time
telework. Id. at 6.
¶8The appellant also contends that the agency committed disability
discrimination because it incorrectly relied on the telework provisions of a
collective bargaining agreement to delay its provision of that reasonable
accommodation. Id. at 8-9. She further asserts that the agency ignored other
requests for accommodation in addition to the requests addressed by the
administrative judge and improperly required her to fill out a form and provide
additional medical documentation. Id. at 9-12.
¶9Having considered the administrative judge’s analysis of this issue, we
discern no error in her findings that any delay in accommodating the appellant
was not unnecessary and that the agency otherwise did not improperly require the
appellant to submit certain forms and provide medical documentation in support
of her accommodation request. ID at 39-43; see Beck v. University of Wisconsin
Board of Regents , 75 F.3d 1130, 1135 (7th Cir. 1996) (“A party that obstructs or
delays the interactive process is not acting in good faith.”) . In sum, we agree
with the administrative judge’s conclusion that, under the circumstances, the
approximately 2 1/2-month delay in granting the appellant’s accommodation
request was not unreasonable. Therefore, the appellant has not shown that the
agency committed disability discrimination. We also set forth, however, an
additional basis for finding that the appellant’s disability discrimination claim
must fail.
¶10To establish an affirmative defense of disability discrimination, an appellant
must first prove, among other things, that she suffers from a disability and that it
caused her misconduct or that the misconduct was entirely a manifestation of her
disability. Burton v. U.S. Postal Service , 112 M.S.P.R. 115, ¶ 15 (2009). The
appellant alleges that the agency’s delay in accommodation worsened her
disabilities and was a significant factor in her “resulting behavioral issues.” PFR5
File, Tab 1 at 12-13. She also suggests that the medication she took for her
disability affected her short-term memory and “allegedly result[ed] in incorrect
time and attendance reporting,” id. at 17-18, and asserts that she presented
medical evidence proving that her past disciplinary actions and the misconduct
underlying the charge of Inappropriate Behavior “were consistent with [her]
bipolar I disability,” id. at 19. She contends that an initial incorrect diagnosis of
her medical condition and incorrect medication treatment contributed to any
faulty time and attendance reporting and that her disability and medication
affected her short-term memory. Id. The appellant submitted evidence
supporting these allegations. IAF, Tab 1 at 67-72, 132, Tab 33 at 35-43, 48-50.
¶11Even assuming that the appellant’s misconduct was consistent with and a
manifestation of her disabilities, see Stevens v. Department of the Army ,
73 M.S.P.R. 619, 627-28 (1997), we would still find that she did not prove her
allegation of disability discrimination. The Rehabilitation Act does not immunize
disabled employees from being disciplined for misconduct in the workplace
provided the agency would impose the same discipline on an employee without a
disability. Burton, 112 M.S.P.R. 115, ¶ 16. An employer never has to excuse a
violation of a uniformly applied conduct rule that is job-related and consistent
with business necessity. See Equal Employment Opportunity Commission Notice
No. 915.002, Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, Question 35 (Oct. 17, 2002),
available at http://www.eeoc.gov/policy/docs/accommodation.html. We find the
agency’s requirements that its employees provide accurate information on their
timecards, communicate with their supervisors in an appropriate manner, and
follow their supervisors’ instructions appear to be conduct rules that are job-
related and consistent with business necessity. The appellant has not shown that
the agency treated her differently from other non-disabled employees who may
have engaged in similar actions. Id.; see Adams v. Department of Labor ,
112 M.S.P.R. 288, ¶ 18 (2009); Burton, 112 M.S.P.R. 115, ¶ 16; Bailey v.6
Department of Defense , 92 M.S.P.R. 59, ¶ 14 (2002). Accordingly, the appellant
has not shown that the agency discriminated against her based on her disability in
connection with the removal action.
The appellant did not prove sex discrimination .
¶12The appellant asserted on appeal that the agency subjected her to a hostile
work environment based on sex and did not take appropriate action in response to
her complaints, but instead directed her to stop her accusations. IAF, Tab 38
at 15-18. In particular, she claimed that a coworker made comments to her of a
sexual nature regarding a female employee who had had an affair with the
appellant’s husband, who also worked at the agency. Id. at 16; see IAF, Tab 1
at 140-41. The appellant asserted that these comments and the agency’s failure to
investigate or stop the harassment decreased her morale, increased her depression
and anxiety, impacted her ability to report to work and focus, and led to her
reliance on medications that contributed to memory and concentration problems,
increased irritability, and a loss of impulse control in her email communications
with her supervisor. IAF, Tab 38 at 16-18.
¶13The administrative judge found that, even if true, the appellant did not show
that the limited conduct of the coworker was so severe or pervasive that a
reasonable person would have found the working environment to be hostile or
abusive. ID at 44-45. The administrative judge held that, even if the appellant
established that she experienced a hostile work environment based on sexual
harassment or a violation of the agency’s harassment reporting policy, the agency
would have removed the appellant based on the sustained misconduct, which was
unrelated to her harassment allegations. ID at 46-47. She thus found no
connection between these events and the removal action. ID at 46. The
administrative judge further found that the proposing and deciding officials had
no knowledge of the appellant’s allegations of sexual harassment. Id.7
¶14The appellant asserts on review that the sexual comments at issue were not
limited but ongoing, as evidenced by an email she sent to her first-level
supervisor. PFR File, Tab 1 at 14-15. The record includes an email dated
November 14, 2016, in which the appellant reported to the supervisor two
inappropriate comments made by her coworker. IAF, Tab 1 at 140. Another
email to her supervisor, dated November 22, 2016, indicates that the appellant
had to listen to the coworker talk about the female employee “still to this day,”
that the coworker continues to say things to the appellant about her husband and
the female employee, and that he made an inappropriate comment to her in that
regard 2 weeks ago. Id. at 141. We find no error in the administrative judge’s
determination that the appellant did not show that these comments, which appear
to have been made within a 2-week period, were sufficiently severe or pervasive
to alter the conditions of her employment and create an abusive working
environment. ID at 45-46; see Viens v. Department of the Interior , 92 M.S.P.R.
256, ¶¶ 9-10 (2002).
¶15Although the appellant contends that the administrative judge did not
consider her first-level supervisor’s direction to her not to report further alleged
sexual harassment by the coworker, PFR File, Tab 1 at 15, the administrative
judge noted this allegation, ID at 44-45, but ultimately found the discrimination
allegation unproven, ID at 45-47. The record includes the supervisor’s notes
from his January 6, 2017 verbal counseling of the appellant, which addressed
numerous aspects of her behavior including her “[i]nappropriate references to
current and former staff members” such as “[a]ccusations about [the coworker].”
IAF, Tab 12 at 211-14. This document does not reflect any demand that the
appellant stop any legitimate complaints about her coworkers. Moreover, the
supervisor confronted the coworker about the appellant’s allegations and
instructed him to stop the comments if they were true. IAF, Tab 13 at 87, Tab 36
at 34. Given these facts and the limited nature and extent of the comments in
question, we agree with the administrative judge that the appellant did not meet8
her burden of proving sex discrimination even assuming that the first-level
supervisor made the alleged remark about her complaints.
The appellant did not prove retaliation for EEO activity .
¶16The administrative judge found that the appellant’s husband filed an EEO
complaint with the agency’s Civil Rights Center on her behalf. ID at 48; see IAF,
Tab 23 at 4. The complaint alleged that the agency failed to reasonably
accommodate the appellant’s disability. IAF, Tab 23 at 4-7. The administrative
judge held that, under Savage v. Department of the Army , 122 M.S.P.R. 612,
¶ 51 (2015), the appellant did not prove that her participation in the EEO process
and investigation was a motivating factor in her removal. ID at 48-49. She found
that, among other things, the appellant primarily alleged retaliation for seeking a
reasonable accommodation, the deciding official was unaware of the “EEO
activity” and disavowed, in a sworn statement, basing her decision on such
activity, and the proposing official, though aware of the “EEO claims,” had no
reason to retaliate against her based on those claims. ID at 48-49.
¶17The motivating factor standard applies to claims of reprisal for engaging in
activity protected under Title VII. See Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶30-31. Specifically, under Title VII, an appellant must
first show that the prohibited consideration was a motivating factor in the
personnel action. Id. However, the Board has recognized that a more stringent
standard applies in the context of retaliation claims arising under the ADA such
that the appellant must prove that her prior EEO activity was a but-for cause of
the retaliation. Haas v. Department of Homeland Security , 2022MSPB 36, ¶ 31;
Pridgen v. Office of Personnel Management , 2022 MSPB 31, ¶¶ 44-47. Both
requesting a reasonable accommodation and complaining of disability
discrimination are activities protected by the Rehabilitation Act. Pridgen, 2022
MSPB 31, ¶ 44. As discussed below, we affirm the administrative judge’s factual9
findings and reach the same conclusion, while modifying the initial decision to
apply the correct standard.
¶18The appellant asserts that, contrary to the administrative judge’s finding,
email evidence shows that the deciding official was aware of her EEO activity.
PFR File, Tab 1 at 7. She contends that the timing of the agency’s actions against
her in relation to that activity provides sufficient evidence of retaliation. Id. The
February 2017 email in question, however, does not show that the deciding
official knew of the appellant’s EEO complaint; rather, at most, it shows that the
deciding official may have been aware of the appellant’s reasonable
accommodation request. IAF, Tab 40 at 11; but see IAF, Tab 36 at 23 (sworn
statement of the deciding official that she only became aware of the appellant’s
reasonable accommodation request in the summer of 2017, after the email in
question). Nevertheless, because we agree with the administrative judge that the
appellant otherwise failed to meet the lesser burden of proving that her protected
activity was a motivating factor in her removal, ID at 47-49, she necessarily
failed to meet the more stringent but-for standard that applies to her retaliation
claim, see Pridgen, 2022 MSPB 31, ¶ 48.
The appellant’s allegations of violations of law do not warrant reversal of the
removal action .
¶19The appellant asserts on review that the agency violated the Telework
Enhancement Act when it imposed more requirements on telework employees
than employees who worked in the office. PFR File, Tab 1 at 13. In particular,
she challenges the agency’s requirement that she produce daily work reports
while teleworking and contends that the administrative judge incorrectly found
that her supervisor did not require her to provide such reports. Id. at 13-14. The
appellant also claims that the agency interfered with her FMLA rights when her
first-level supervisor required her to conduct work and attend meetings while on
FMLA leave. PFR File, Tab 1 at 15-17; see IAF, Tab 20 at 26-28.10
¶20The administrative judge found no violation of the Telework Enhancement
Act. ID at 31-32. The administrative judge also found that, even assuming that
the appellant’s supervisor interfered with her FMLA rights by sending her emails
that required her to take certain actions while on FMLA leave, those assignments
were distinct from any instructions or other matters at issue in the removal action;
thus, the administrative judge found that the appellant did not show that the
removal was predicated on, or motivated by, an interference with her FMLA
rights. ID at 57-59. We agree with the administrative judge’s findings.
¶21The appellant has not shown how any alleged violation of the above laws
warrants reversal of the removal action. If an agency bases an adverse action on
its interference with an employee’s rights under the FMLA, the adverse action is
a violation of law and cannot be sustained. Gross v. Department of Justice ,
77 M.S.P.R. 83, 90 (1997); see Ellshoff v. Department of the Interior ,
76 M.S.P.R. 54, 73 (1997) (finding that when the facts implicate the FMLA
relative to a leave-related charge, the Board will consider and apply the FMLA
without shifting the burden of proof to the appellant) . Here, however, the agency
did not charge the appellant with a leave-related offense, nor was its action
otherwise based on an interference with her FMLA rights. Similarly, because the
action was not based on any failure by the appellant to produce daily work reports
while teleworking, it does not implicate the Telework Enhancement Act.
¶22An appealable action must be reversed as “not in accordance with law”
under 5 U.S.C. § 7701(c)(2)(C) if the action is unlawful in its entirety, i.e., if
there is no legal authority for the action. Stephen v. Department of the Air Force ,
47 M.S.P.R. 672, 683-84 (1991). Even assuming a violation of one of the above
laws, such a violation would not establish a lack of legal authority for the
removal action. Under these circumstances, the appellant’s arguments do not
warrant reversal of the removal action. See Gulso v. Department of the Air
Force, 46 M.S.P.R. 478, 483 (1990); Gaines v. Department of the Treasury ,
19 M.S.P.R. 88, 89 (1984); cf. Miller v. Department of Homeland Security ,11
111 M.S.P.R. 325, ¶ 14 (2009) (holding that the Board does not have jurisdiction
over all matters that are alleged to be unfair or incorrect), aff’d, 361 F. App’x 134
(Fed. Cir. 2010) .
The agency proved the reasonableness of the penalty .
¶23The appellant asserts that the agency did not provide her with notice of its
concerns regarding her timecard reporting until it proposed her removal, and that
providing such earlier notice would have afforded her the opportunity to
“implement[] corrective action and methods to compensate for her disability and
the fact that her medication, which was impacting her short-term memory, was
allegedly resulting in incorrect time and attendance reporting.” PFR File, Tab 1
at 17-18. The administrative judge addressed this issue, finding that the appellant
knew that she was required to certify on her timecards that her time worked and
leave taken were true and correct to the best of her knowledge. ID at 62. The
administrative judge also considered the appellant’s medical conditions and
mental disabilities as mitigating factors, particularly in light of her assertions that
they played a role in her misconduct. ID at 62-63. Nevertheless, the
administrative judge found these factors outweighed by the aggravating factors,
including the fact that the appellant repeatedly misreported her time and
attendance, sometimes by periods of 1 hour or more, over a long period of time.
ID at 63-64.
¶24One of the relevant factors in determining the reasonableness of a penalty is
the clarity with which the employee was on notice of any rules that were violated
in committing the offense, or had been warned about the conduct in question.
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981). The
administrative judge correctly noted that the timecard certification provided
clarity to the appellant that the agency expected her reported hours and leave to
be true and correct. Moreover, the Board has held that an agency’s failure to
warn an appellant that he is being investigated for possible attendance12
irregularities does not provide a basis for mitigation. Flanagan v. Department of
the Army, 44 M.S.P.R. 378, 381 (1990). Thus, the Board has held that there is no
requirement that an agency provide an employee with a specific warning before it
proposes an adverse action, particularly when the action is based on a charge
involving time and attendance records, which the employee knows or should
know constitutes serious misconduct. Id. at 381-82.
¶25The appellant further contends that the administrative judge improperly
relied on prior discipline for misconduct similar to that underlying the charge of
Inappropriate Behavior in finding that she was on notice that such conduct was
unacceptable. PFR File, Tab 1 at 18. In this regard, the appellant contends that
her undiagnosed mental disability was likely the cause of the behavior underlying
that prior discipline. Id. at 18-19. Prior discipline, however, may constitute
notice that an appellant has been warned about the type of conduct that an agency
deems to be unacceptable and serious. Diggs v. Department of Housing & Urban
Development, 114 M.S.P.R. 464, ¶ 10 (2010); Jinks v. Department of Veterans
Affairs, 106 M.S.P.R. 627, ¶ 25 (2007). To the extent that the appellant contests
the merits of the prior disciplinary actions, such a challenge is beyond the
Board’s limited scope of review. See Colon v. Department of Veterans Affairs ,
73 M.S.P.R. 659, 666 (1997), superseded by rule on other grounds as recognized
by Jones v. Department of Energy , 120 M.S.P.R. 480, ¶¶ 5-10 (2013), aff’d,
589 F. App’x 972 (Fed. Cir. 2014) ; Bolling v. Department of the Air Force ,
9 M.S.P.R. 335, 339 -40 (1981) (limiting the Board’s review of a prior
disciplinary action to determining whether that action was clearly erroneous, if
the employee was informed of the action in writing, the action was a matter of
record, and the employee was permitted to dispute the charges before a higher
level of authority than the one that imposed the discipline). The appellant has
otherwise shown no error in the administrative judge’s determination that the
penalty of removal was reasonable. See ID at 61-64.13
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.14
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any15
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s16
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Kelly_Anne_C_DC-0752-18-0576-I-1__Final_Order.pdf | 2024-07-16 | ANNE C. KELLY v. DEPARTMENT OF LABOR, MSPB Docket No. DC-0752-18-0576-I-1, July 16, 2024 | DC-0752-18-0576-I-1 | NP |
954 | https://www.mspb.gov/decisions/nonprecedential/McCue_KeithDC-315H-20-0635-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEITH MCCUE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-20-0635-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Keith McCue , Montclair, Virginia, pro se.
Director , 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 probationary termination 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).
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On May 1, 2020, the agency terminated the appellant from his Boiler Plant
Operator position during his probationary period. Initial Appeal File (IAF),
Tab 1 at 2-3. On May 21, 2020, the appellant filed the instant appeal, challenging
the termination. Id. at 2-5. The administrative judge ordered the appellant to
provide evidence and argument by June 11, 2020, showing cause why his appeal
should not be dismissed for lack of jurisdiction. IAF, Tab 2 at 2-5. The appellant
did not file a response to the Board’s order. IAF, Tab 3, Initial Decision (ID)
at 2. Subsequently, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. ID at 1-4. The decision included instructions
that it would become final on August 5, 2020, unless a petition for review was
filed by that date. ID at 5.
On August 6, 2020, the appellant filed the petition for review currently
before us. Petition for Review (PFR) File, Tab 1. On August 20, 2020, the
Acting Clerk of the Board issued an acknowledgment letter, advising the
appellant that his petition for review was untimely filed and informing him that
he must establish good cause for the untimely filing no later than September 2,
2020. PFR File, Tab 2 at 2. To assist the appellant, the Acting Clerk of the
Board attached a “Motion to Accept Filing as Timely and/or Ask the Board to
Waive or Set Aside the Time Limit” form. Id. at 7-8. The appellant did not
respond to the acknowledgment letter.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations provide that a petition for review must be filed
within 35 days of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the date of issuance, within 30 days
after the date he received the initial decision. 5 C.F.R. § 1201.l14(e). The Board
will waive its filing deadline only upon a showing of good cause for the delay in
filing. 5 C.F.R. §§ 1201.l14(f), (g). To establish good cause for an untimely2
filing, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force, 4 M.S.P.R. 180, 184 (1980). The Board will consider the length of the
delay, the reasonableness of his excuse and his showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existence
of circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Moorman v.
Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
Here, the appellant has not alleged that the initial decision was received
more than 5 days after the date of issuance. Accordingly, he had until August 5,
2020, the 35th day following the issuance of the July 1, 2020 initial decision, to
file a petition for review. The initial decision properly advised the appellant that
the date of filing by commercial delivery is the date the document was delivered
to the commercial delivery service. ID at 8; Riggsbee v. Office of Personnel
Management, 111 M.S.P.R. 129, ¶ 8 (2009); 5 C.F.R. § 1201.4( l). The
appellant’s petition for review was delivered to commercial delivery service UPS
on August 6, 2020, which makes it untimely filed by 1 day. PFR File, Tab 1.
The appellant has not explained his filing delay. Although the delay in filing was
only 1 day and the appellant is pro se, the Board has consistently denied a waiver
of its filing deadline in cases when the delay is minimal and a good reason for the
delay is not shown. Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201,
¶ 6 (2014); see Pace v. Office of Personnel Management , 113 M.S.P.R. 681, ¶ 11
(2010) (observing that the Board has consistently denied a waiver of the deadline
for filing a petition for review if a good reason for the delay is not shown, even
when the delay is minimal and the petitioning party is pro se).
Applying these factors, we find that the appellant has failed to establish
good cause for his untimely petition for review. Despite the Acting Clerk of the3
Board’s show cause order providing the appellant with his burden of proof on
timeliness and an opportunity to explain his filing delay, the appellant did not
submit a response to the order. PFR File, Tab 2. The appellant has not otherwise
submitted any evidence or argument regarding the timeliness of the petition for
review. Therefore, he has not established good cause for the filing delay.
Gaetos, 121 M.S.P.R. 201, ¶ 6.
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 dismissal of the probationary termination appeal for lack of
jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | McCue_KeithDC-315H-20-0635-I-1__Final_Order.pdf | 2024-07-16 | KEITH MCCUE v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-20-0635-I-1, July 16, 2024 | DC-315H-20-0635-I-1 | NP |
955 | https://www.mspb.gov/decisions/nonprecedential/Morrison_John_W_PH-0752-16-0422-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN W. MORRISON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-16-0422-I-3
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kim Shugars , Las Vegas, Nevada, for the appellant.
Barbara M. Dale , Esquire, Newport, Rhode Island, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*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 procedural history is complicated, but the relevant facts are generally
undisputed. The appellant was employed as a GS-7 Firefighter, a non-critical
sensitive position which required him to maintain eligibility for a security
clearance. Morrison v. Department of the Navy , MSPB Docket No. PH-0752-16-
0422-I-2, Appeal File (I-2 AF), Tab 9 at 70, 209-10, 256. The agency made a
preliminary determination to revoke his eligibility for a security clearance and
assignment to a sensitive position. Id. at 234-35. After the appellant submitted a
response, id. at 222-33, the agency revoked his eligibility for a security clearance
because the extent of his indebtedness and failure to provide sufficient evidence
of repayment or resolution of his debts cast doubt on his judgment, reliability,
and trustworthiness, id. at 219-20. The appellant appealed the revocation to the
Personnel Security Appeals Board, which upheld the revocation of his security
clearance. Id. at 212-13. Thereafter, the agency proposed his removal on
March 28, 2012, based on the charge of Denied Eligibility to Access Non -Critical
Sensitive Areas. Id. at 163-66. The appellant responded to the proposal. Id.
at 64, 80-161.2
On July 13, 2012, the appellant met with his third-level supervisor, who
told him that the charge against him had been sustained and that he was to be
removed that same day. I-2 AF, Tab 9 at 64-66, Tab 38 at 7. Although the
appellant was advised of the agency’s decision, the decision letter was not issued
to him that day because he decided to retire before the removal could take effect.
I-2 AF, Tab 9 at 67-69, Tab 38 at 7.
The appellant filed an involuntary retirement appeal with the Board, and
the administrative judge dismissed the appeal for lack of jurisdiction
without holding a hearing. Morrison v. Department of the Navy , MSPB Docket
No. PH-0752-14-0669-I-1, Initial Decision (Jul. 29, 2014). After the appellant
filed a petition for review, the Board found that he nonfrivolously alleged that his
retirement was involuntary because he materially relied on agency
misinformation, vacated the initial decision, and remanded the appeal for a
jurisdictional hearing. Morrison v. Department of the Navy , 122 M.S.P.R. 205,
¶¶ 1, 4, 7-10, 13 (2015).
On remand, after holding a jurisdictional hearing, the administrative judge
found that the appellant’s retirement was involuntary, and she ordered the
appellant retroactively restored to the status quo ante. Morrison v. Department
of the Navy, MSPB Docket No. PH-0752-14-0669-B-1, Remand Initial Decision
(Dec. 21, 2015). After the agency filed a petition for review, the Board affirmed
the initial decision as modified to clarify how status quo relief could be provided.
Morrison v. Department of the Navy , MSPB Docket No. PH-0752-14-0669-B-1,
Final Order (Jun. 28, 2016). The Board found that the status quo ante relief
required the agency to determine if and when the appellant would have been
removed had he not retired, and then take the necessary unexecuted steps to issue
its decision, including providing the appellant with notice of appeal rights. Id.,
¶ 17. The Board noted that, if the agency would have removed the appellant
effective July 13, 2012, his retirement date would not be cancelled, and he would
not be entitled to reinstatement or back pay. Id. The Board also noted that the3
agency must follow applicable laws and regulations in documenting the
separation as a retirement in lieu of removal. Id.
By letter dated July 6, 2016, the agency determined that it would have
effected the appellant’s removal had he not retired on July 13, 2012. I-2 AF,
Tab 9 at 19-22. Consistent with the Board’s order, the agency therefore
documented his removal, effective July 13, 2012, as when an employee retires in
lieu of removal. Id. at 70. This appeal followed. Morrison v. Department of the
Navy, MSPB Docket No. PH-0752-16-0422-I-1, Initial Appeal File (IAF), Tab 1.
The administrative judge dismissed the appeal without prejudice because the
appellant had appealed the Board’s June 28, 2016 Final Order to the U.S. Court of
Appeals for the Federal Circuit. IAF, Tab 5.
Meanwhile, in his appeal to the Federal Circuit, the appellant argued that
he was entitled to some back pay as a matter of law. Morrison v. Department of
the Navy, 876 F.3d 1106, 1109 (Fed. Cir. 2017). The court dismissed the appeal
for lack of jurisdiction because it found that the Board’s June 28, 2016 decision
was not a final order or final decision for purposes of 28 U.S.C. § 1295(a)(9). Id.
at 1109-11.
Following the Federal Circuit’s decision, the appellant’s appeal of his
removal was automatically refiled. I-2 AF, Tab 2. During the course of the
appeal, the appellant requested an extended adjournment because of his
representative’s unavailability. I-2 AF, Tab 43 at 2. The administrative judge
therefore dismissed the appeal without prejudice, to be automatically refiled in
60 days. Id. at 1-3.
The appeal was thereafter automatically refiled. Morrison v. Department of
the Navy, MSPB Docket No. PH-0752-16-0422-I-3, Appeal File (I-3 AF), Tab 2.
Following the failure of the appellant to appear for his requested hearing, the
appeal was decided based on the written record. I-3 AF, Tab 18, Initial Decision
(ID) at 1. The administrative judge affirmed the appellant’s removal, finding that
his position required a security clearance, his security clearance was revoked, he4
was provided the required procedural protections, and the agency had no policy or
regulation requiring it to reassign him to a different position. ID at 5-6. She
noted that, in cases such as this, involving a removal based on the revocation of a
security clearance, the Board does not conduct a traditional Douglas factors2
analysis, ID at 4-5, and she was thus precluded from considering the appellant’s
affirmative defense of age discrimination, ID at 6 n.2.
The appellant has filed a lengthy petition for review. Petition for Review
(PFR) File, Tab 1. In it, he makes the following arguments, among others:
(1) the agency failed to provide him with “termination papers”; (2) the agency
violated his due process rights and committed harmful error when it removed
him; (3) the agency failed to consider the Douglas factors in removing him;
(4) the agency removed him because of his age and his equal employment
opportunity (EEO) activities, his whistleblowing activities, and his decision to
file a grievance; (5) his retirement was involuntary; (6) the agency failed to carry
out the Board’s prior orders; (7) the agency failed to properly respond to his
discovery requests and thereby violated his due process rights; (8) the agency
representative committed fraud by forging his signature; (9) his requested
witnesses, who were agency employees, were not made available; (10) the agency
witnesses and representatives refused to be on video; (11) one of the compact
discs (CDs) he was sent, which contained the recording of a status conference,
was cracked, and he should be provided all recordings and transcripts of the calls
made in this appeal; (12) the administrative judge improperly rejected his filings
on technical grounds; (13) the administrative judge improperly denied his request
for a continuance of the hearing and then denied him a hearing; (14) the
administrative judge was biased against him; (15) the administrative judge should
have appointed him a representative; and (16) he should be awarded damages and
attorney fees. Id. He also provides additional documentation, to include the
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981 ), the Board
articulated a nonexhaustive list of factors that are relevant in determining the
appropriateness of a penalty.5
following: some of the agency’s responses to his interrogatories and requests for
production of documents; his communication with the administrative judge about
a cracked CD and alleged fraud by agency counsel; the initial decision; and a
complaint that he filed below against the administrative judge and agency
counsel. Id. at 26-28, 37-73. The agency has filed a response opposing the
petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge.
The agency bears the burden of proving its charge by preponderant
evidence. Munoz v. Department of Homeland Security , 121 M.S.P.R. 483, ¶ 7
(2014). In an appeal of an adverse action under 5 U.S.C. § 7513 based on the
denial, revocation, or suspension of a security clearance, the Board does not have
the authority to review the substance of the underlying security determination.
Department of the Navy v. Egan , 484 U.S. 518, 530 (1988); Grimes v. Department
of Justice, 122 M.S.P.R. 36, ¶ 7 (2014). Rather, the Board only has the authority
to review whether (1) the appellant’s position required a clearance, (2) the
clearance was denied, revoked, or suspended, and (3) the employee was provided
with the procedural protections specified in 5 U.S.C. § 7513. Grimes,
122 M.S.P.R. 36, ¶ 7. Section 7513(b) provides that, in connection with a
proposed removal action, an employee is entitled to the following: (1) at least
30 days’ advance written notice, stating the specific reasons for the proposed
action; (2) a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in support of the
answer; (3) to be represented by an attorney or other representative; and (4) a
written decision and the specific reasons therefor.
Among other things, the administrative judge found that the undisputed
evidence established the following: (1) the appellant’s position was a non-critical
sensitive position that required him to maintain eligibility for a security6
clearance; (2) his eligibility for a security clearance and his assignment to a
sensitive position was revoked; (3) he was provided 30 days’ advance written
notice of the specific reasons for his proposed removal (5 U.S.C. § 7513(b)(1));
and (4) he was provided a reasonable opportunity to respond (5 U.S.C. § 7513(b)
(2)). ID at 2, 5. The appellant does not challenge these findings on review, and
we discern no reason to disturb them. Accordingly, we find that these elements
are satisfied.
Regarding whether the appellant was allowed representation in connection
with the proposed removal (5 U.S.C. § 7513(b)(3)), the administrative judge
found that he had an opportunity to be represented. ID at 5. However, the
appellant indicates on review that, upon being shown the July 13, 2012 decision
notice, he was denied the opportunity to speak to his attorney before making a
decision on whether to retire or to be removed. PFR File, Tab 1 at 11.
The proposal notice informed the appellant that he could be represented by
an attorney or other representative in making his reply, but that such designation
had to be in writing. I-2 AF, Tab 9 at 164. The then-unissued 2012 decision
letter stated that the appellant designated a representative in a facsimile sent on
April 3, 2012. Id. at 64. Moreover, the appellant’s response to the notice of
proposed removal contained an annotation indicating that a carbon copy would be
sent to his representative. Id. at 80-84. Additionally, he has been represented by
the same representative throughout these appeals.3 Accordingly, we find that the
agency has complied with the requirements of 5 U.S.C. § 7513(b)(3).
Regarding 5 U.S.C. § 7513(b)(4), the appellant asserts that he never
received a termination letter in 2012 or thereafter. PFR File, Tab 1 at 18. The
record contains two written decision letters regarding the appellant’s removal.
The first is dated July 13, 2012, and stated that the appellant was to be removed
3 The appellant’s allegation that he was denied the opportunity to speak with his
representative on July 13, 2012, when he had to decide between retirement and removal
before the decision letter was issued, has little, if any, relevance to the appeal before us,
since the Board determined that his retirement was involuntary.7
that same day based on the charge of Denied Eligibility to Access Non -Critical
Sensitive Areas. I-2 AF, Tab 9 at 20-22. The second is dated July 6, 2016, and it
referenced and reissued the earlier decision letter and readopted the findings
therein. Id. at 19.
It appears undisputed that, although the appellant was not formally issued
the July 13, 2012 decision letter, he was made aware of the nature of the
contents therein on that date. Additionally, the appellant included a copy of the
July 6, 2016 decision letter, as well as the reissued and readopted July 13, 2012
decision letter, with his initial appeal. IAF, Tab 1 at 9-12. Accordingly, we find
that the agency complied with the requirements of 5 U.S.C. § 7513(b)(4) by
providing the appellant with its written decision, containing the specific reasons
therefor, concerning his removal. We further find that the charge is sustained.
We have considered the appellant’s substantive arguments regarding the
removal, but none warrant a different outcome. For example, below, the
appellant filed a complaint in which he asserted, among other things, that he was
denied due process and/or that the agency engaged in harmful error when the
agency failed to (1) notify him of its attempt to “[b]ack date” his removal, and
(2) provide him notice of the removal, his Board appeal rights, and the specific
grounds and material relied upon for its removal decision. I-2 AF, Tab 39 at 6-7.
The administrative judge did not address the appellant’s argument regarding the
attempt to “[b]ack date” his removal, although she did find that that he “was
provided a written decision with reasons in accordance with Section 7513(b).” ID
at 5. On review, the appellant attaches his complaint and the arguments raised
therein, PFR File, Tab 1 at 62-63, which we construe as an allegation that the
administrative judge erred in her analysis of these issues. For the reasons
discussed above, the appellant’s assertions that the agency failed to provide him
with notice of the removal and the specific grounds for its decision are without
merit. Furthermore, the 2016 decision letter, which reissued the 2012 decision
letter, informed the appellant of his Board appeal rights. I-2 AF, Tab 9 at 19-22. 8
Due process requires that the appellant be given notice of the reasons for
the removal and an opportunity to respond. Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546 (1985). The appellant has not cited any
specific evidence in support of his bare assertion that the agency failed to
provide him with the material relied upon for its decision. To the contrary, the
March 28, 2012 proposal notice indicated that the agency’s case file and materials
relied upon were included with the notice. I-2 AF, Tab 9 at 163-64. Moreover,
the administrative judge sanctioned the appellant and held that the agency’s
requests for admissions would be deemed admitted based on his failure to respond
in accordance with her order. I-3 AF, Tab 9 at 5. Among other things, the
administrative judge deemed that the appellant admitted that, on or about
March 28, 2012, he was presented with a proposal notice along with the material
upon which the notice relied. Id. at 5, 9. Accordingly, we find that the agency
provided the appellant with the material relied upon for its decision, and thus,
there was no due process violation or agency error.
Regarding the appellant’s assertion that the agency failed to notify him of
its attempt to back date his removal, PFR File, Tab 1 at 62, the nature of this
assertion is unclear. We interpret his assertion as arguing that the agency failed
to issue him another proposal notice following the Board’s finding that his
retirement was involuntary and its order to the agency to determine whether it
would have removed the appellant if he did not retire. However, the appellant
cites no authority for the proposition that the agency was required to issue him a
second proposal notice following the reversal of his retirement as involuntary, nor
are we aware of any. We find that there was no need for the agency to issue a
new proposal notice following the Board’s 2016 final order. To hold otherwise—
and require the agency to initiate an entirely new removal action whereby it
would have to provide the appellant with, inter alia, 30 days advance written
notice—would place the appellant in a better position than he would have enjoyed
if he had not retired on July 13, 2012. See Baldwin v. Department of Veterans9
Affairs, 111 M.S.P.R. 586, ¶¶ 45-47 (2009) (finding that the Board’s relief order
for an appellant whose resignation was found involuntary had to take into account
that the agency had decided to remove him the same day he resigned).
Accordingly, we find his argument to be without merit.
We have considered the appellant’s argument that the penalty of removal is
inconsistent with the Douglas factors. E.g., PFR File, Tab 1 at 15-19. However,
unless an employee has been provided a substantive right to reassignment through
statute or regulation, it is improper for the Board to consider the Douglas factors
in cases wherein the employee has been subjected to an adverse action based on
security clearance or eligibility determinations. Ryan v. Department of Homeland
Security, 793 F.3d 1368, 1373 (Fed. Cir. 2015); Munoz, 121 M.S.P.R. 483, ¶ 15.
Here, as the administrative judge found, the agency set forth unrefuted evidence
that no such statute or regulation required the agency to transfer the appellant to a
non-sensitive position. ID at 5 (citing I-2 AF, Tab 9 at 25, 236). Therefore, we
need not address his arguments regarding the Douglas factors.
The appellant also argues that the agency discriminated against him in
violation of Title VII of the Civil Rights Act of 1964 and retaliated against him
because of his EEO activity, his whistleblowing disclosures, and his filing of a
grievance. E.g., PFR File, Tab 1 at 9-10, 12-14, 25, 28-29. The Board is without
authority to review such affirmative defenses in the context of an adverse action
based on a security clearance determination. Adams v. Department of Defense ,
688 F.3d 1330, 1334 (Fed. Cir. 2012); Doe v. Department of Justice ,
121 M.S.P.R. 596, ¶ 10 & n.5 (2014). Therefore, we need not address such
claims on review.
The agency restored the appellant to the status quo ante.
The appellant asserts that the agency never returned him to the status quo
ante by cancelling his retirement and providing him an appropriate amount of10
back pay.4 PFR File, Tab 1 at 24-25. The appellant also requests front pay,
damages, “interest compounded, 401k losses to be added, [v]acation [p]ay, [and]
[s]ick pay.” Id. at 23, 29.
The Board has jurisdiction to consider an appellant’s claim of agency
noncompliance with a Board order. Kerr v. National Endowment for the Arts ,
726 F.2d 730, 733 (Fed. Cir. 1984). When an agency action is canceled, the
proper remedy is to place the employee as nearly as possible in the status quo
ante, i.e., in the position he would have occupied absent the improper action.
Sink v. Department of Energy , 110 M.S.P.R. 153, ¶ 19 (2008). Status quo ante
relief does not entitle an appellant to be placed in a better position than he would
have enjoyed had the adverse action not occurred. Id.; King v. Department of the
Navy, 98 M.S.P.R. 547, ¶ 19 (2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006).
Normally, issues of agency noncompliance and status quo ante relief are
addressed in a petition for enforcement. However, the appellant was not advised
during the course of this appeal that he should have filed a petition for
enforcement regarding the agency’s alleged noncompliance with the Board’s prior
order, and he did not file such a petition for enforcement. Given the unusual
posture of this appeal, we consider this issue herein. See, e.g., Sink,
110 M.S.P.R. 153, ¶¶ 18-23 (remanding the appeal and discussing the appellant’s
entitlement to status quo ante relief in an involuntary retirement appeal under
unusual circumstances, including that the appellant’s former position had been
abolished in a legitimate reorganization, he refused a directed reassignment, the
agency proposed his removal based on his refusal to accept the directed
reassignment, and the appellant involuntarily retired before a decision on the
proposed removal).
For the reasons discussed herein, the only improper action was the
appellant’s involuntary retirement in 2012. Consistent with the Board’s June 28,
4 On review, the appellant asserts that he was forced to retire in 2012. PFR File, Tab 1
at 11-12. However, as noted above, the Board has already found that his retirement was
involuntary. Therefore, we need not address this issue on review.11
2016 Final Order, the agency found, by letter dated July 6, 2016, that, had the
appellant not retired on July 13, 2012, it would have effected his removal that
day. I-2 AF, Tab 9 at 19. The agency therefore documented his removal,
effective July 13, 2012, as when an employee retires in lieu of removal. Id. at 70.
The agency’s evidence is credible and comports with the Board’s order.
Because we find that the appellant would have been removed, effective
July 13, 2012, but for his involuntary decision to retire on that same day, ordering
that he be provided back pay or other compensation for any amount of time
following that date would place him in a better position than he would have
enjoyed had his involuntary retirement not occurred. Accordingly, we find that
the agency has provided the appellant with all of the status quo ante relief to
which he is entitled.
The appellant’s remaining arguments do not warrant a different outcome.
On review, the appellant argues, among other things, that the administrative
judge was biased against him and erred when she denied his request for a
continuance of the hearing and decided the appeal on the written record, rejected
his motions to compel, failed to address the agency representative’s alleged fraud,
and failed to provide him with a representative. PFR File, Tab 1 at 6-9, 14-15,
19-22, 26-28, 45. For the reasons stated below, we find that the appellant’s
arguments are without merit.
The administrative judge properly denied the appellant’s request for
a continuance of the hearing and decided the appeal based on the
written record.
The Board’s regulations provide that a motion for postponement of the
hearing must be made in writing and must be accompanied by an affidavit or
sworn statement that describes the reasons for the request, and the
administrative judge will grant the request only upon a showing of good cause.
Brown v. Department of the Interior , 86 M.S.P.R. 546, ¶ 15 (2000); 5 C.F.R.
§ 1201.51(c). 12
On the evening of February 25, 2019, the appellant requested via facsimile
a continuance of the video-conference hearing scheduled for February 28, 2019.
I-3 AF, Tab 9 at 9, Tab 12. His motion made the following assertions: (1) there
was a death and an out-of-town wedding in his family; (2) the appellant’s
representative’s mother was ill; and (3) there was a “need for all the witnesses to
be video taped [sic].” I-3 AF, Tab 12 at 1. No further details or evidence were
provided in support of his motion for a continuance. The administrative judge
denied the appellant’s motion because he did not show good cause. I-3 AF,
Tab 14 at 1. The administrative judge informed him that, if he failed to appear
for the February 28, 2019 hearing, she would treat his non -appearance as a
request to withdraw his request for the hearing and decide the appeal based on the
written record. Id.
On February 28, 2019, the administrative judge opened the record, stated
that the appellant had called earlier that morning to say that he would not be
appearing for the hearing, noted that the agency representative had appeared for
the hearing, and canceled the hearing. I-3 AF, Tab 15, Hearing Compact Disc.
Later that day, the appellant filed a submission in which he indicated that he was
“very troubled” by the administrative judge’s denial of his request for a
continuance, he reiterated the bases for his motion, and he added that he could
“not make the hour long trip” to the hearing due to “icy conditions” and “slippery
weather.” I-3 AF, Tab 16 at 1-2. Neither his motion nor later submission was in
the form of an affidavit or sworn statement.
Under the circumstances of this case, in which no affidavit or sworn
statement was provided in support of the motion for continuance, we agree with
the administrative judge that the appellant failed to make a showing of good
cause for a continuance. See McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶¶ 22-23 (2011) (finding that the administrative
judge did not abuse his authority in denying the appellant’s request to postpone
the hearing when the appellant failed to show good cause for such postponement),13
aff’d, 497 F. App’x 4 (Fed. Cir. 2012); see also Johnson v. Department of the
Treasury, 721 F.2d 361, 362-65 (Fed. Cir. 1983) (finding that the presiding
official did not abuse his discretion in denying a third requested postponement of
the hearing and deciding the appeal on the written record when the appellant’s
representative disregarded the Board’s regulations and procedures). In light of
our finding that the administrative judge did not err in canceling the hearing, we
need not address the appellant’s other hearing-related arguments regarding
witnesses or the manner in which the hearing was to be held.
The administrative judge properly rejected the appellant’s motions to
compel.
On review, the appellant indicates that the administrative judge improperly
rejected some of his pleadings for failing to comply with technical requirements.
PFR File, Tab 1 at 14. He argues that administrative judges should provide
guidance to pro se appellants and interpret their arguments in the most favorable
light. Id. (citing Miles v. Department of Veterans Affairs , 84 M.S.P.R. 418
(1999)). He also asserts that the administrative judge returned his motions back
to him without ruling on them. E.g., PFR File, Tab 1 at 21.
Although unclear, it appears that the appellant is referring to the
administrative judge’s decision to deny his various motions to compel. The
Board will not reverse an administrative judge’s rulings on discovery matters
absent an abuse of discretion . Wagner v. Environmental Protection Agency ,
54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). In
her order and summary of telephonic status conference, the administrative judge
noted that the appellant appeared to have filed several motions to compel, and she
denied them for failure to comply with 5 C.F.R. §§ 1201.73, 1201.74. I-2 AF,
Tab 16 at 1. Among other things, these regulations provide that motions for
orders compelling discovery must include the following: (i) a copy of the
original discovery request and a statement showing that the information sought is
discoverable; (ii) a copy of the response to the request or a statement that no14
response has been received, along with an affidavit or sworn statement supporting
the statement; and (iii) a statement that the moving party has discussed or
attempted to discuss the anticipated motion with the nonmoving party and made a
good faith effort to resolve the discovery dispute and narrow the areas of
disagreement. 5 C.F.R. §§ 1201.73(c)(1), 1201.74(a).
Here, at a minimum, the appellant’s motions to compel failed to include a
statement showing that the information sought was discoverable and a statement
that he made a good faith effort to resolve the discovery dispute and narrow the
areas of disagreement. I-2 AF, Tabs 10-13. Indeed, some of the information that
the appellant indicated he was seeking involved the Douglas factors and
accommodations given to other employees, information that is not relevant to the
issues in this appeal and, thus, not discoverable. E.g., I-2 AF, Tab 11 at 6-9, 11,
Tab 12 at 2; see 5 C.F.R. § 1201.72(a) (providing that relevant information
includes information that appears reasonably calculated to lead to the discovery
of admissible evidence). Thus, we discern no error with the administrative
judge’s decision to deny these motions to compel.
In her order and summary of the status conference, however, the
administrative judge provided the appellant the opportunity to file an amended
motion to compel in compliance with the Board’s regulations. I-2 AF, Tab 16
at 1. The appellant thereafter filed additional motions to compel, I-2 AF,
Tabs 21-22, which the administrative judge subsequently denied as being
noncompliant with 5 C.F.R. §§ 1201.73, 1201.74, I-2 AF, Tab 23 at 1. She also
stated that any further motions to compel filed by the appellant would be rejected.
Id. The administrative judge thereafter rejected three additional motions to
compel filed by the appellant.5 I-2 AF, Tabs 27, 34.
5 The administrative judge also rejected a submission from the appellant that was
received after the issuance of the initial decision. I-3 AF, Tab 20. The appellant has
not specifically alleged error with respect to the administrative judge’s rejection of this
submission, PFR File, Tab 1, and we need not consider this issue on review.15
Although the appellant is correct that administrative judges should provide
more guidance to pro se appellants, see Miles, 84 M.S.P.R. 418, ¶ 10, during the
time period relevant here, the appellant was represented by a non-attorney
representative. Moreover, following the appellant’s initial failure to comply with
the Board’s regulations concerning motions to compel, the administrative judge
directed him and his representative to those regulations and provided him another
opportunity to submit a motion to compel that complied with the regulations.
I-2 AF, Tab 16 at 1. Thus, we find that the appellant was provided ample
guidance and the opportunity to cure the defects in his earlier motions to compel.
Additionally, as the appellant notes, the MSPB Judge’s Handbook requires
administrative judges to issue a written disposition for every motion filed. PFR
File, Tab 1 at 28; see MSPB Judge’s Handbook, Ch. 5 § 3.6 The Handbook
provides that “[i]t is important to assure that the record contains a clear ruling on
all motions that may be significant so that the record reflects fully the
[administrative judge’s] actions and decisions.” MSPB Judge’s Handbook, Ch. 5
§ 3. Here, the administrative judge disposed of the appellant’s motions to compel
by either denying them or by rejecting them in written decisions that fully
reflected the administrative judge’s analysis.
Under the circumstances presented here, we find no abuse of discretion
committed by the administrative judge. In light of our finding that the
administrative judge properly denied or rejected the appellant’s motions to
compel discovery, we need not address the appellant’s argument on review that
the agency failed to comply with his discovery requests and thereby violated his
due process rights. PFR File, Tab 1 at 8, 22.
Relatedly, the appellant alleged below that one of the agency
representatives committed fraud by rewriting his motion to compel and signing
his name to it. I -2 AF, Tabs 21-22, Tab 37 at 1-3. Indeed, the appellant filed a
complaint with the administrative judge regarding this allegation. I-2 AF,
6 https://www.mspb.gov/appeals/files/ALJHandbook.pdf (last visited Jul. 16, 2024).16
Tab 39. The administrative judge found that the appellant failed to put forth any
evidence that the agency engaged in fraud or exhibited bad faith, and she further
found that the appellant failed to show that the agency representatives engaged in
any contumacious conduct or conduct prejudicial to the administration of justice.
I-3 AF, Tab 9 at 7. Accordingly, the administrative judge denied his request for
sanctions. Id. The appellant includes this complaint on review, PFR File, Tab 1
at 58-70, and we interpret this inclusion as a request for the Board to reevaluate
his complaint. The regulation at 5 C.F.R. § 1201.43 states that an administrative
judge “may impose sanctions upon the parties as necessary to serve the ends of
justice.” For the reasons stated by the administrative judge, we affirm her
decision to deny the appellant’s request for sanctions.
The appellant was not entitled to have a representative appointed for
him by the Board.
The appellant indicates that the Board should have appointed him a
representative, considering that his chosen representative was “very ill,” and he
makes reference to the French procedures. PFR File, Tab 1 at 15, 22. In French
v. Office of Personnel Management , 810 F.2d 1118, 1120 (Fed. Cir. 1987), the
Federal Circuit remanded a disability retirement appeal to the Board with
instructions to formulate a procedure “to ensure the presence of a competent
conservator or attorney” in a case involving “an apparently nonfrivolous claim of
past incompetence by one presently incompetent.” The apparent ill health of the
appellant’s representative is not a proper basis to invoke the French procedures
because these procedures do not extend beyond cases involving a potential right
to an annuity. Burge v. Department of the Air Force , 82 M.S.P.R. 75, ¶ 32
(1999). Because this removal action is based on a revoked security clearance and
does not specifically involve a right to an annuity, it is the appellant’s obligation
to secure his own representation. See Brum v. Department of Veterans Affairs ,
109 M.S.P.R. 129, ¶ 5 (2008).17
The appellant failed to establish that the administrative judge was
biased.
Below, the appellant filed a complaint against the administrative judge
asserting, among other things, that the administrative judge was biased against
him during the July 11, 2018 status conference,7 during which she became “very
angry,” “lost her composure,” and showed favoritism toward the agency by
granting its numerous extension requests. E.g., I-2 AF, Tab 39 at 3-4, 13-14. He
also requested a change of venue and a different administrative judge. Id. at 4.
The administrative judge denied his request for her withdrawal. I-3 AF, Tab 9
at 7-8. The appellant resubmits his complaint on review, PFR File, Tab 1
at 58-70, which we interpret as his request for the Board to reevaluate these
assertions.
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). Our review of the record in this case indicates that the
administrative judge made some inappropriate statements directed at the
appellant’s representative during the July 11, 2018 status conference. I-2 AF,
Tab 26. 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)). As the court found in Bieber, 287 F.3d at 1361-62, some of the
7 The appellant indicates that he was previously sent a broken copy of the recording of
this status conference. PFR File, Tab 1 at 21, 26. He requests the recordings and
transcripts of all the conferences in this appeal. Id. at 21, 26, 28. Below, the
administrative judge provided him information on how to request another copy of the
status conference recording. I-3 AF, Tab 9 at 6-7. The appellant may request a copy of
any of the recordings in this appeal in accordance with 5 C.F.R. § 1201.53(c). 18
administrative judge’s comments in this case were inappropriate, but they do not
meet this standard and, thus, do not warrant new proceedings.
Regarding the administrative judge’s decision to grant the agency’s
extension requests, the record reflects that the administrative judge’s flexibility
extended to both parties. For example, she rescheduled several conferences
because of the appellant’s or his representative’s unavailability, I-2 AF, Tabs 5,
14, and dismissed the appeal without prejudice, to be automatically refiled, for
his benefit, I-2 AF, Tab 43. Moreover, it is well settled that an administrative
judge’s case-related rulings, even if erroneous, are insufficient to establish bias
warranting recusal, and claims of perceived adjudicatory errors simply do not
provide a basis for recusal. King v. Department of the Army , 84 M.S.P.R. 235,
¶ 6 (1999). Accordingly, we find that the appellant has failed to establish that the
administrative judge was biased against him.
The appellant’s requests for attorney fees and damages are denied.
The appellant requests attorney fees and costs as well as compensatory and
consequential damages. PFR File, Tab 1 at 23, 29. However, following the
Board’s June 28, 2016 Final Order, the appellant filed a motion for attorney fees,
which the administrative judge granted in part for the appellant’s attorneys’ work
on the following appeals: MSPB Docket Nos. PH-0752-14-0669-I-1, PH-0752-
14-0669-B-1, and PH-0752-14-0669-A-1. Morrison v. Department of the Navy ,
MSPB Docket No. PH-0752-14-0669-A-1, Initial Decision (Oct. 3, 2016). The
administrative judge’s decision on that motion for attorney fees became final on
November 7, 2016, after neither party filed a petition for review. The appellant’s
requests for fees and damages in this matter are denied because, among other
things, they do not comport with the Board’s regulations at 5 C.F.R.
§§ 1201.202-.204.
Finally, we have considered the remaining arguments raised in the
appellant’s petition for review but find that they do not warrant a different19
outcome. We therefore deny the petition for review and affirm the initial
decision.
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 20
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any21
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s22
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 23
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.24 | Morrison_John_W_PH-0752-16-0422-I-3__Final_Order.pdf | 2024-07-16 | JOHN W. MORRISON v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-16-0422-I-3, July 16, 2024 | PH-0752-16-0422-I-3 | NP |
956 | https://www.mspb.gov/decisions/nonprecedential/Bunch_Gloria_A_CH-0752-13-0455-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA A. BUNCH,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-0752-13-0455-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria A. Bunch , Little Rock, Arkansas, pro se.
Zane Perry Schmeeckle , 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.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her removal as barred by the doctrine of res judicata. 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
¶2On July 31, 2007, the appellant appealed the agency’s decision removing
her from her position as a Social Worker at the VA Medical Center in Kansas
City, Missouri, and the administrative judge in that case issued an initial decision
on November 13, 2007, sustaining the agency’s removal action. Bunch v.
Department of Veterans Affairs , MSPB Docket No. CH-0752-07-0587-I-1, Appeal
File, Tabs 1, 32. The appellant filed a petition for review of that decision and on
February 29, 2008, the Board issued a Final Order denying the appellant’s
petition for review.2 Bunch v. Department of Veterans Affairs , MSPB Docket
No. CH-0752-07-0587-I-1, Petition for Review File, Tabs 1, 6.
¶3On April 18, 2013, the appellant filed the instant appeal, again challenging
her removal. Initial Appeal File (IAF), Tab 1. The administrative judge issued
an acknowledgment order noting that it appeared the appellant was attempting to
raise a claim that had already been fully adjudicated and instructed her to file
evidence and argument to show good cause why her appeal should not be
dismissed on res judicata grounds. IAF, Tab 2; see IAF, Tabs 7, 9. After
considering the appellant’s jurisdictional response, the administrative judge
issued an initial decision on August 1, 2013, dismissing the appeal as barred by
the doctrine of res judicata, without holding the appellant’s requested hearing.
IAF, Tab 13, Initial Decision (ID); see IAF, Tabs 10-12. The administrative
judge informed the appellant that any petition for review of the initial decision
must be filed no later than September 5, 2013, and provided instructions on how
to do so. ID at 3-6.
2 The appellant also filed a petition for review of the Board’s decision with the Equal
Employment Opportunity Commission (EEOC) regarding her claim that the agency
discriminated against her on the basis of reprisal for her prior protected equal
employment opportunity activity when it removed her. See Bunch v. Department of
Veterans Affairs, MSPB Docket No. CH-0752-07-0587-I-1, Petition for Review (0587
PFR) File, Tab 8. In a final decision dated April 22, 2008, the EEOC’s Office of
Federal Operations concurred with the Board’s decision finding no discrimination.
0587 PFR File, Tab 10.2
¶4The appellant filed a petition for review, more than 7 years later, on January
12, 2021. Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board
issued an acknowledgment order noting that the appellant’s petition for review
appeared untimely, and the appellant submitted a motion to waive the time limit
for filing a petition for review. PFR File, Tabs 2-3. The agency filed a response
requesting that the Board dismiss the petition for review as untimely filed without
good cause shown for the delay, or alternatively, affirm the initial decision
because the administrative judge correctly dismissed the appeal as barred by the
doctrine of res judicata. PFR File, Tab 4. The appellant filed a reply. PFR File,
Tab 11.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is untimely filed without good cause shown.
¶5The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on
August 1, 2013, and the administrative judge correctly informed the appellant that
she was required to file any petition for review no later than September 5, 2013.
ID at 1, 4. The appellant’s petition for review of the initial decision was filed on
January 12, 2021. PFR File, Tab 1 at 209; Tab 2 at 1. We therefore find that the
petition for review is untimely filed by over 7 years and 4 months.
3 The appellant also filed a pleading entitled “Notice of Motion and Motion to Quash
Certificate of Service,” requesting that the Board reject the agency’s response to the
petition for review because it failed to properly serve the pleading on the appellant by
the response filing deadline. PFR File, Tab 6. In light of our disposition dismissing
this appeal as untimely filed without good cause shown for the delay, the appellant’s
motion is moot.3
¶6The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo, 120 M.S.P.R. 594, ¶ 4; Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of her
excuse and her showing of due diligence, whether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to her inability
to timely file her petition. Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman v.
Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table). The Board may decline to excuse a pro se appellant’s
minimal delay when she fails to establish that she acted with due diligence. See,
e.g., Lockhart v. Office of Personnel Management , 94 M.S.P.R. 396, ¶¶ 7-8
(2002).
¶7Although the appellant is pro se, the remaining factors disfavor finding that
good cause exists for her delay in filing. Her filing delay of over 7 years and
4 months is significant. Youngblood v. U.S. Postal Service , 112 M.S.P.R. 136,
¶¶ 7-8 (2009) (finding a delay of over 2 years in the filing a petition for review
was “significant,” and declining to excuse the untimeliness of the petition, even
considering the appellant’s pro se status). We have also considered the
appellant’s assertion that the filing deadline should be waived because of her
various health conditions. The Board will find good cause for an untimely filing
when a party demonstrates that she suffered from an illness or medical condition
that affected her ability to file on time. See Pirkkala v. Department of Justice ,
123 M.S.P.R. 288, ¶ 19 (2016). To establish that an untimely filing was the result4
of an illness, the party must (1) identify the time period during which she suffered
from the illness, (2) submit medical evidence showing that she suffered from the
alleged illness during that time period, and (3) explain how the illness prevented
her from timely filing her petition or a request for an extension of time. Nesby v.
Office of Personnel Management , 81 M.S.P.R. 118, ¶ 7 (1999); Lacy v.
Department of the Navy , 78 M.S.P.R. 434, 437 (1998). The party need not prove
incapacitation, only that her ability to file was affected or impaired by the
medical condition. Id.
¶8In her motion to waive the time limit for filing a petition for review, the
appellant identifies that she has had numerous hospitalizations and surgeries, and
states that her health conditions have left her incapacitated and unable to advocate
for herself. PFR File, Tab 3 at 2-3. With her motion, she provides an undated
letter noting that she was admitted to a hospital from August 8, 2015, through
August 22, 2015, for certain health conditions, and a letter dated October 27,
2010, noting that she had been treated for fibromyalgia and had a knee
replacement on October 19, 2010. Id. at 4-5. Additionally, with her petition for
review filing, the appellant provided numerous medical documents dating from
May 1996 through December 9, 2020, documenting her various conditions. PFR
File, Tab 1 at 28-208. The bulk of these records cover the period from April 2005
through April 2014, and relate to the appellant’s treatment for various health
conditions. See id. at 30-141. The records also reflect that the appellant was
hospitalized several times during the period from April 2005 through November
2006. Id. at 30-33, 37-38, 52-53, 56, 80. In her reply to the agency’s response to
the petition for review, the appellant includes additional records covering the
period from January 2013 through January 2014, relating mostly to her hip,
shoulder, lower back, osteoarthritis, and associated pain conditions. PFR File,
Tab 11 at 8-76.
¶9Although the appellant generally states that her various conditions
prevented her from “being of sound mind and physical health to prosecute” her5
appeal in a timely manner, she has not specifically explained how her conditions
prevented her from filing a petition for review or motion for an extension of time.
PFR File, Tab 4 at 6. Although some of the medical records state that the
appellant is disabled and unable to work due to her various conditions and include
requests that she be provided additional time to submit filings, none of the
records explain how her illnesses prevented her from timely filing a petition for
review for the duration of the relevant time period, between the issuance of the
initial decision on August 1, 2013, and the filing of her petition for review on
January 12, 2021. See e.g., PFR File, Tab 1 at 48, 93, 137, 147-48. Specifically,
none of the medical records cover a significant portion of the 7-year period
between when the administrative judge issued the initial decision and when the
appellant filed her petition for review, including the period from April 22, 2014,
through August 7, 2015, and from August 23, 2015, through September 12, 2019.
See Pirkkala, 123 M.S.P.R. 288, ¶ 20 (finding that the appellant failed to explain
how her shoulder problems affected her ability to file a timely removal appeal);
Gonzalez v. Department of Veterans Affairs , 111 M.S.P.R. 697, ¶¶ 9-10 (2009)
(finding that a physician’s office’s notes excusing an appellant from work for
stress, insomnia, and severe headaches failed to establish that his conditions
impaired his ability to file a timely petition for review or request an extension of
time to file); Stribling v. Department of Education , 107 M.S.P.R. 166, ¶¶ 10-11
(2007) (finding that an appellant failed to establish good cause for an untimely
filing despite her assertion that she suffered from anxiety and depression because
she did not present any evidence that specifically addressed her condition during
the relevant time period even though other evidence showed that she suffered
from symptoms prior to the filing period, and because she failed to explain how
her medical conditions prevented her from making a timely filing or requesting an
extension).
¶10Additionally, in December 2019, the appellant filed an appeal with the
Office of Personnel Management (OPM) pertaining to her Federal Employees’6
Group Life Insurance coverage election, and subsequently filed a May 2020
Board appeal challenging OPM’s final decision and an October 2020 petition for
review of that initial decision, all during the relevant period. Bunch v. Office of
Personnel Management , MSPB Docket No. DA-0841-20-0350-I-1, Appeal File
(0350 AF), Tab 1, 15; Bunch v. Office of Personnel Management , MSPB Docket
No. DA-0841-20-0350-I-1, Petition for Review File, Tab 1; see 0350 AF, Tab 10
at 5-7. The appellant’s demonstrated ability to actively participate in other
proceedings during the relevant period weighs against a finding that her medical
conditions prevented her from timely filing her petition for review or a request
for an extension of time. See Stribling, 107 M.S.P.R. 166, ¶ 14 (finding that the
appellant failed to establish that her medical condition prevented her from timely
filing her petition for review or a request for an extension of time because she
was actively participating in other proceedings during the relevant time period).
We therefore find that the appellant has failed to establish good cause for a
waiver of the time limit.4
4 Following the close of the record on review, the appellant submitted a motion for
leave to file an additional pleading. PFR File, Tab 18. In the motion, she requests to
submit medical records demonstrating that she was “‘incapacitated’ throughout this
process,” emphasizing that she had multiple hospitalizations during the period from
May 2, 2021, through May 7, 2021, had surgeries, and was unable to advocate for
herself. Id. at 3. She also asserts that her previous attorney failed to include all of her
medical records below and that she did not understand a prior Board order rejecting her
request to submit an additional pleading. Id.; PFR File, Tab 15. The appellant has not
provided any indication of what new medical record evidence she would like to submit,
if any, and further, she still has not alleged that the additional medical records would
explain her untimeliness during the period relevant in this appeal, from August 1, 2013,
through January 12, 2021. Regarding her assertion that her prior attorney improperly
failed to include relevant medical record evidence below, the Board has repeatedly held
that, absent evidence of deception, negligence, or malfeasance, the appellant is
generally responsible for the errors of her chosen representative. See e.g., Hamilton v.
Department of Homeland Security , 117 M.S.P.R. 384, ¶ 13 (2012) (finding that the
appellant’s claim of receiving misguided advice from his attorney was unpersuasive
because he is responsible for the errors of his chosen representative); Fox v. U.S. Postal
Service, 81 M.S.P.R. 522, ¶¶ 4-5 (1999) (rejecting an appellant’s attempt to introduce
evidence on petition for review which was not introduced below, noting that appellant
was responsible for the strategic errors of his representative); Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981); cf. Pacilli v. Department of Veterans Affairs ,7
¶11For the forgoing reasons, we dismiss the appellant’s petition for review as
untimely filed without good cause shown. This is the final decision of the Merit
Systems Protection Board regarding the timeliness of the petition for review. The
initial decision remains the final decision of the Board regarding the removal
appeal.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
113 M.S.P.R. 526, ¶ 13 (explaining that, although an appellant generally is responsible
for the errors of her chosen representative, an exception may lie when the appellant
establishes that her diligent efforts to prosecute an appeal were thwarted without her
knowledge by her attorney’s deceptions, negligence, or malfeasance), aff’d,
404 F. App’x 466 (Fed. Cir. 2010). Accordingly, the motion is denied. See 5 C.F.R.
§§ 1201.114(k), 1201.115(d).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil 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.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. 11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Bunch_Gloria_A_CH-0752-13-0455-I-1__Final_Order.pdf | 2024-07-16 | GLORIA A. BUNCH v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-13-0455-I-1, July 16, 2024 | CH-0752-13-0455-I-1 | NP |
957 | https://www.mspb.gov/decisions/nonprecedential/Moore-Moody_TonyaDC-1221-19-0581-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONYA MOORE-MOODY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-19-0581-W-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul E. Hamilton , Gilbert, Arizona, for the appellant.
David R. Scruggs , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed 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, as to one claim, the appellant did not exhaust her remedy with the
Office of Special Counsel (OSC), and that therefore that claim must be dismissed
for lack of jurisdiction, we AFFIRM the initial decision.
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). Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 6 (2014); see
Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001).
The administrative judge found the appellant exhausted her claim that she
made protected whistleblower disclosures by filing an equal employment
opportunity (EEO) complaint alleging that agency officials discriminated against
her based on her race and sex, and retaliated against her for having filed a
previous EEO complaint. Initial Appeal File (IAF), Tab 21, Initial Decision
at 6-7. We find no error in the administrative judge’s findings regarding
exhaustion of this claim before OSC.2
On review, the appellant argues that, in her EEO complaint, she also
alleged that the agency violated the law, specifically, the Americans with
Disabilities Act (ADA), in not selecting her for a higher-graded position for
which she had applied, failing to reasonably accommodate her regarding the
granting of leave under the Family and Medical Leave Act, and in job
assignments. Petition for Review File, Tab 3 at 7-12.
In an IRA appeal, the Board may consider only those matters that the
appellant asserted before OSC .2 Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 8 (2011). The appellant here failed to show that she raised
to OSC her claim alleging violation of the ADA.3 IAF, Tab 2. Because she has
not shown that she provided OSC with a sufficient basis to pursue an
investigation regarding her claim that the agency violated the ADA or otherwise
discriminated against her based on her disability, Ward v. Merit Systems
Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992), she did not exhaust her
2 The purpose of the requirement that an appellant exhaust her remedies with OSC prior
to filing an IRA appeal with the Board is to give OSC “the opportunity to take
corrective action before involving the Board in the case.” Ward v. Merit Systems
Protection Board , 981 F.2d 521, 526 (Fed. Cir. 1992). The Board, in Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, clarified the substantive
requirements of exhaustion. The requirements are met when an appellant has provided
OSC with a sufficient basis to pursue an investigation. The Board’s jurisdiction is
limited to those issues that were previously raised with OSC. However, appellants may
give a more detailed account of their whistleblowing activities before the Board than
they did to OSC. Id. Appellants may demonstrate exhaustion through their initial OSC
complaint; evidence that they amended the original complaint, including but not limited
to OSC’s determination letter and other letters from OSC referencing any amended
allegations; and their written responses to OSC referencing the amended allegations.
Id. Appellants also may establish exhaustion through other sufficiently reliable
evidence, such as an affidavit or a declaration attesting that they raised with OSC the
substance of the facts in the Board appeal. Id. The test of the sufficiency of an
employee’s charges of whistleblowing to OSC is the statement that she makes in the
complaint requesting corrective action, not her post hoc characterization of those
statements. Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1036 (Fed. Cir.
1993).
3 Below, the appellant stated that she did not have a copy of her OSC complaint. IAF,
Tab 9 at 4. She submitted only the closure letter she received from OSC. IAF, Tab 2.3
remedy before OSC, and therefore that claim in her IRA appeal must be dismissed
for lack of jurisdiction because of her failure to exhaust her remedy with OSC.
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).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on5
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Moore-Moody_TonyaDC-1221-19-0581-W-1__Final_Order.pdf | 2024-07-16 | null | DC-1221-19-0581-W-1 | NP |
958 | https://www.mspb.gov/decisions/nonprecedential/Podgorski_PaulDC-3443-23-0322-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL PODGORSKI,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
DC-3443-23-0322-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul Podgorski , Charlotte, North Carolina, pro se.
Scott David Cooper , Esquire, Fairfax, 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 for lack of jurisdiction his appeal concerning his nonselection for
multiple positions, finding that he failed to nonfrivolously allege that the agency
subjected him to a suitability action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On review, the appellant asserts many of the same arguments that he raised
before the administrative judge. Petition for Review (PFR) File, Tab 1. He also
asserts that the agency’s purported policy of not referring to the hiring manager
applications of employees who were previously removed from the agency for
cause violates Office of Personnel Management (OPM) guidelines. Id. at 5-6. To
the extent the appellant is attempting to assert that an employment practice
applied to him by OPM violates a basic requirement in 5 C.F.R. § 300.103, the
appellant did not raise such a claim before the administrative judge despite notice
as to how to establish jurisdiction over such a claim, Initial Appeal File (IAF),
Tab 5 at 2-3, and we therefore decline to consider it on review, see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating 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).
¶3Regarding the suitability action appeal, the appellant challenges the
administrative judge’s statement in the initial decision that some of his
applications were referred to the hiring manager, stating that the administrative2
judge’s conclusion was not supported by statements from agency officials. PFR
File, Tab 1 at 6. Even if the appellant was not referred to the hiring official for
any of the positions at issue, we agree with the administrative judge’s conclusion
that it was the agency’s application of a policy, and not a case-specific
examination of the appellant’s prior conduct as it bears on his current suitability,
that led to his nonselection for various positions and, therefore, the Board lacks
jurisdiction over the appeal as a suitability action. IAF, Tab 20, Initial Decision
(ID) at 4-5; see Malone v. U.S. Postal Service , 28 F. App’x 936, 938-39 (Fed. Cir.
2001) (dismissing for lack of jurisdiction an appeal challenging an agency policy
that refused to employ persons who were previously removed from Federal
service for cause, concluding that the employee had failed to make a nonfrivolous
allegation that the agency subjected him to a suitability determination).2 For the
reasons set forth in the initial decision, we agree with the administrative judge
that the appellant has failed to nonfrivolously allege jurisdiction over his
suitability action appeal.3 ID at 4-5.
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
2 The Board may choose to follow nonprecedential decisions of the U.S. Court of
Appeals for the Federal Circuit that it finds persuasive, as we do here. See Dean v.
Office of Personnel Management , 115 M.S.P.R. 157, ¶ 14 (2010). Although Malone
was issued before OPM amended its regulations in 2008, we find that those amendments
further support the holding in Malone that a nonselection is not a suitability action,
even if it is based on the criteria in 5 C.F.R. § 731.202. Malone, 28 F. App’x at 938-39;
5 C.F.R. § 731.203(b) (“A non-selection, or cancellation of eligibility for a specific
position based on an objection to an eligible . . . is not a suitability action even if it is
based on reasons set forth in § 731.202.”).
3 We deny the appellant’s motion to strike the agency’s response to his petition for
review and find that the agency’s response was timely filed in accordance with 5 C.F.R.
§ 1201.23.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 of6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Podgorski_PaulDC-3443-23-0322-I-1__Final_Order.pdf | 2024-07-16 | PAUL PODGORSKI v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DC-3443-23-0322-I-1, July 16, 2024 | DC-3443-23-0322-I-1 | NP |
959 | https://www.mspb.gov/decisions/nonprecedential/Caldwell_Stephanie_L_DC-844E-19-0578-I-2__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE L. CALDWELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-19-0578-I-2
DATE: July 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Stephanie L. Caldwell , Concord, North Carolina, pro se.
Christy Miller , 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 failure to prosecute her appeal from a reconsideration decision by
the Office of Personnel Management (OPM). For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, 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).
REMAND the case to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant filed the instant appeal challenging OPM’s reconsideration
decision denying her disability retirement benefits under the Federal Employees
Retirement System (FERS). Initial Appeal File (IAF), Tab 1 at 3, Tab 6 at 6,
20-21. As relevant here, the administrative judge conducted a telephonic status
conference, which both the appellant and the agency attended. Refiled Appeal
File (RAF), Tab 2, Tab 3 at 1.
During the status conference, the appellant promised to contact the
administrative judge by December 30, 2019, to inform him of whether she wished
to proceed to a hearing or have him issue a decision on the written record. RAF,
Tab 3 at 2. Following the conference, the administrative judge issued a hearing
order in which he ordered the parties to submit prehearing submissions, scheduled
a prehearing status conference, and scheduled a hearing. Id. at 2-4. He
subsequently issued an erratum notice moving forward the due date for prehearing
submissions. RAF, Tab 4.
The appellant subsequently never contacted the administrative judge
regarding whether she wanted a hearing or a decision on the written record. RAF,
Tab 6 at 2. Moreover, she did not file prehearing submissions, and she failed to
appear for the prehearing conference. Id. The administrative judge therefore
cancelled the hearing and ordered the appellant to show cause as to why
sanctions, including the dismissal of her appeal with prejudice, should not be
imposed. Id. at 2-3. The administrative judge further informed the appellant that
if she failed to comply with the order, the appeal would be dismissed for failure
to prosecute. Id. at 3. The order, issued on January 23, 2020, gave the appellant
until January 30, 2020, to respond. Id. The appellant again did not respond.2
After the response window lapsed, the administrative judge issued an initial
decision dismissing the appeal with prejudice for failure to prosecute. RAF,
Tab 7, Initial Decision (ID) at 1. The administrative judge held that the appellant
had failed to respond to or comply with “numerous” Board orders and directives
during her appeal. ID at 4. He further observed that the appellant had been
warned of the consequences of her failure to respond. Id.
The appellant subsequently filed a petition for review. Petition for Review
(PFR) File, Tab 1. She appears to assert that she never received the hearing order
or erratum notice, claiming she “did not receive a notice to appear.” Id. at 1. She
further states that she suffers from a mental illness, has been “extremely
depressed,” and that her depression has hindered her from “properly taking care
of business.” Id. Nonetheless, she repeats her claim that she did not receive the
order and notice, and states that had she received them she would have complied.
Id. She also attaches copies of medical records and a letter related to OPM’s
processing of her disability retirement application. Id. at 5-217. The agency has
not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has rebutted the presumption that she received the hearing order
and the following erratum notice.
Here, the appellant asserts on review that she never received “the notice to
appear.” PFR File, Tab 1 at 1. We interpret this as a claim that she did not
receive the hearing order and erratum notice. See Miles v. Department of
Veterans Affairs , 84 M.S.P.R. 418, ¶ 10 (1999) (explaining that administrative
judges should provide more guidance to pro se appellants and interpret their
arguments in the most favorable light). Because she did not respond to the order
to show cause below, the administrative judge did not have an opportunity to
address this assertion. We do so here.
The administrative judge mailed the hearing order and erratum notice to the
appellant at the address she provided on her initial appeal form. IAF, Tab 1 at 1;3
RAF, Tab 3 at 6, Tab 4 at 2. The Board will presume that documents placed in
the mail are received in 5 days. Cabarloc v. Department of Veterans Affairs ,
110 M.S.P.R. 695, ¶ 7 (2009). However, a party may rebut this presumption with
a statement denying receipt and certifying to the truth of the party’s statement.
See id., ¶¶ 5, 7 (finding that an appellant’s statement as to the date of delivery of
an agency’s final decision letter, made on an appeal form which included a
certification that the statements therein were true, was sufficient to rebut the
presumption of 5-day mail delivery).
Here, the appellant stated in her unsworn petition for review that she did
not receive the scheduling information. PFR File, Tab 1 at 1. Nonetheless, we
find the statement sufficient to rebut the presumption of receipt under the facts
here. The Board has previously held that, unless specifically required by the
administrative judge, an appellant’s statement on the timeliness of an initial
appeal need not be sworn or in affidavit form. Moss v. Department of the Army ,
85 M.S.P.R. 478, ¶ 6 (2000). Although the order at issue here concerned the
appellant’s failure to comply with a hearing order, and not the timeliness of her
initial appeal, we find it analogous. The administrative judge did not require the
appellant in the order to show cause to submit a sworn statement. Therefore, the
appellant’s unsworn statement on review that she did not receive the hearing
order is entitled to evidentiary weight. PFR File, Tab 1 at 1; see Moss,
85 M.S.P.R. 478, ¶ 6. In light of the lack of any contradictory evidence and the
appellant’s pro se status, we find that the appellant established that she did not
receive the hearing order and erratum notice. See Moss, 85 M.S.P.R. 478, ¶ 6
(considering as factors in favor of crediting an appellant’s unsworn statement as
to when she received a termination notice from the Office of Special Counsel that
her employing agency did not submit any evidence to contradict the appellant’s
statement and her pro se status).4
The appellant’s failure to respond to the order to show cause is insufficient to
warrant dismissal of the appeal.
The appellant does not deny on review that she received and failed to
respond to the order to show cause. PFR File, Tab 1 at 1. Thus, we presume she
received the notice on January 28, 2020, 5 days after it was issued.2 RAF, Tab 6
at 1; see Cabarloc, 110 M.S.P.R. 695, ¶ 7. The administrative judge found that
the appellant’s failure to respond to this order was part of a pattern of the
appellant failing to respond to “numerous” orders, justifying a dismissal of failure
to prosecute. ID at 3-4. We are not persuaded.
The order to show cause stated that the appellant’s response was to be
received by the administrative judge “on or before January 30, 2020.” RAF,
Tab 6 at 3. Thus, accounting for 5 days of mailing to the appellant, it afforded
the appellant only 2 days to review and respond to the order. It did not allow
5 days for return mailing.3 Under these circumstances, the administrative judge
did not allow the appellant sufficient time to respond or file a motion for an
extension. Holland v. Department of Labor , 108 M.S.P.R. 599, ¶¶ 5, 11 (2008)
(concluding that a 5-day deadline for an appellant to respond to an order did not
provide her with sufficient time to receive the order and respond); Lynch v. Office
of Personnel Management , 79 M.S.P.R. 437, ¶ 8 (1998) (finding the
administrative judge’s order, affording only 10 days for the order to reach an
appellant and her response to be received, did not allow for any time to prepare a
response in light of the 5-day presumption for mail delivery).
In any event, failure to obey a single order does not ordinarily justify
dismissal for failure to prosecute. Turner v. U.S. Postal Service , 123 M.S.P.R.
640, ¶ 14 (2016), aff’d per curiam , 681 F. App’x 934 (Fed. Cir. 2017). Here, the
2 The certificate of service indicates the order was mailed on January 22, 2020. RAF,
Tab 6 at 4. However, the order is dated January 23, 2020. Id. at 1. Therefore, we
assume it was actually mailed on the latter of those two dates, January 23, 2020.
3 The initial decision was issued only 12 days after the order to show cause, on
February 4, 2020. ID at 1.5
appellant participated in her appeal by requesting “additional time to submit
evidence that may support [her] appeal” and attending a status conference. IAF,
Tab 10; RAF, Tab 2 at 1, Tab 3 at 1; see Wiggins v. Department of the Air Force ,
113 M.S.P.R. 443, ¶ 12 (2010) (finding that an appellant who provides some
responses to Board orders, even if incomplete or duplicative, does not evidence
an intent to abandon an appeal). Because the appellant established on review that
she did not receive the hearing order and erratum notice, her failure to respond to
the remaining order, the order to show cause, is not sufficient to justify
dismissing her appeal for failure to prosecute. Additionally, although the
appellant allegedly “promised” to contact the administrative judge regarding
whether she wanted a hearing or not, she was not ordered to do so. RAF, Tab 3
at 1-2. Accordingly, we find that the appellant’s failure to contact the
administrative judge as promised does not evidence a lack of diligence or
negligence or an intent to abandon her appeal.
Based on the foregoing, we find that the appellant has not exhibited an
intent to abandon her appeal, nor negligence or bad faith. Nonetheless, in
remanding this appeal, we observe that appellants are expected to comply with all
orders issued by the Board’s administrative judges. Wiggins, 113 M.S.P.R. 443,
¶ 15. Moreover, an administrative judge may impose various sanctions when a
party fails to comply with an order. Id.; see 5 C.F.R. § 1201.43(a) (listing
possible sanctions). Accordingly, on remand, the appellant must be more diligent
in complying with the administrative judge’s orders and in pursuing her appeal to
avoid the imposition of sanctions as necessary to serve the ends of justice. See
Wiggins, 113 M.S.P.R. 443, ¶ 15.
To the extent the appellant has submitted documents on review to argue she
was unable to respond to the order to show cause for medical reasons, we find it
unnecessary to consider them in light of our findings here. PFR File, Tab 1. To
the extent she has submitted them to prove her entitlement to a disability6
retirement annuity, she may resubmit them below in compliance with the
administrative judge’s orders.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Caldwell_Stephanie_L_DC-844E-19-0578-I-2__Remand_Order.pdf | 2024-07-16 | STEPHANIE L. CALDWELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-19-0578-I-2, July 16, 2024 | DC-844E-19-0578-I-2 | NP |
960 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_RaulDA-0845-19-0284-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAUL RODRIGUEZ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0845-19-0284-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alfredo Morales , Esquire, McAllen, Texas, for the appellant.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the final decision of the Office of Personnel Management (OPM)
regarding a Federal Employees’ Retirement System (FERS) annuity overpayment.
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
On December 31, 2014, the appellant retired from the Department of
Homeland Security under FERS. Initial Appeal File (IAF), Tab 8 at 40. In his
retirement application, the appellant indicated that he was unmarried and had no
former living spouse. Id. at 36. He elected an unreduced annuity payable only
during his lifetime and commencing January 1, 2015. Id. at 20, 36. However, at
the time of his retirement, the appellant was involved in litigation with a woman
claiming to be his common law wife and suing for divorce. IAF, Tab 1 at 4;
Hearing Compact Disc (HCD) at 31:20 (testimony of the appellant).
On May 14, 2015, a jury in the District Court of El Paso County, Texas
issued a verdict finding that the appellant had entered into common law marriage
as of July 6, 1996. IAF, Tab 8 at 22-23. On September 25, 2015, the court issued
a divorce decree, effective August 20, 2015, which included a division of marital
property. Id. at 22-30. As relevant here, the court ordered that the appellant’s
former spouse be awarded an interest in his FERS basic annuity, as well as a2
former spouse survivor annuity “as more particularly set forth in the Qualifying
Retirement Benefits Order filed with the Court contemporaneously with this
decree.” Id. at 26. That order, captioned “Order Dividing Federal Employees’
Retirement System Benefits,” was issued in compliance with the requirements of
5 C.F.R. part 838, subpart C. Id. at 31-33. The order specified that the
appellant’s former spouse was to receive 31.265% of the appellant’s gross
monthly annuity, commencing September 1, 2015, as well as a former spouse
survivor annuity in the maximum amount. Id. at 32.
On April 29, 2017, OPM issued the appellant a notice stating that, effective
June 1, 2017, it would begin directly paying the appellant’s former spouse the
31.265% of his basic annuity, as contemplated in the court order, and that the
appellant’s former spouse was due a retroactive apportionment payment of
$5,912.80, which OPM would recover by withholding $125 per month from the
appellant’s annuity. Id. at 21. It does not appear that the appellant contested this
action.2 OPM’s letter also acknowledged the court-ordered survivor annuity,
but there was no mention of any deductions or overpayments that would be
assessed against the appellant’s basic annuity to pay for it. Id.
Subsequently, on March 12, 2018, OPM issued the appellant another
notice, this time stating that it had determined that his former spouse was eligible
for maximum survivor benefits effective January 1, 2015, and that adding the cost
of the survivor benefits retroactive to that date had caused an overpayment of
$15,406. Id. at 15. OPM proposed to collect the overpayment by withholding
36 monthly installments of $427.94 from the appellant’s annuity, with a final
installment of $0.16. Id. The appellant requested reconsideration. Id. at 8-14.
On March 13, 2019, OPM issued a reconsideration decision affirming the
existence of the overpayment and the collection schedule. Id. at 5-7.
2 At this point, evidence concerning the former spouse’s share of the basic annuity, the
retroactive apportionment payment, and the $125 monthly withholding vanishes from
the record. It is not clear what ever became of this matter, but it is not at issue in the
instant appeal, and we find that it is ultimately immaterial to the outcome.3
The appellant filed the instant Board appeal, challenging the existence of
the overpayment and requesting a waiver. IAF, Tab 1. After a telephonic
hearing, the administrative judge issued an initial decision, affirming the
existence of the overpayment and denying the appellant’s request for waiver, but
adjusting the collection schedule to $300 per month. IAF, Tab 17,
Initial Decision (ID).
The appellant has filed a petition for review, contesting the existence of the
overpayment, requesting waiver of collection, and alleging bias by the
administrative judge. Petition for Review (PFR) File, Tab 1. OPM has filed a
response. PFR File, Tab 3.
ANALYSIS
OPM has proven the existence and the amount of the overpayment.
OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); see 5 C.F.R. § 845.307(a). In this
case, the administrative judge found that, according to the court order, the
appellant’s former spouse was entitled to a maximum survivor annuity, and that a
maximum survivor annuity entails a 10% reduction in the basic annuity. ID at 2,
5. She further found that OPM provided sufficient evidence to prove the
mathematical accuracy of the stated overpayment amount. ID at 5.
On petition for review, the appellant renews his argument that OPM should
not have honored the court order because he had elected no survivor annuity at
the time of his retirement, and that his election controls over the court order.
PFR File, Tab 1 at 6-8. We disagree. Under FERS, an employee who was
married at the time of retirement will receive a fully reduced annuity in order to
provide an annuity for his current spouse unless the employee and his spouse
jointly waive the survivor annuity in writing.3 5 U.S.C. § 8416(a)(1); 5 C.F.R.
3 The amount of such a reduction is 10% of the retiree’s annuity. 5 U.S.C. § 8419(a)
(1); 5 C.F.R. § 842.603(c). 4
§ 842.603(a). Because the appellant was, in fact, married at the time of his
retirement, it would appear that his election of an unreduced annuity was invalid
for lack of spousal consent and waiver.
However, as the appellant points out, there is an exception to the general
rule requiring spousal consent and waiver if the employee establishes to OPM’s
satisfaction that his spouse’s whereabouts cannot be determined, or “that, due to
exceptional circumstances, requiring the employee . . . to seek the spouse’s
consent would otherwise be inappropriate.” 5 U.S.C. § 8416(a)(2). The appellant
asserts that his case “falls squarely” under the latter category because he alerted
the OPM official preparing his retirement documents of the pending divorce
proceedings, and the official allowed him to elect an unreduced annuity anyway.4
PFR File, Tab 1 at 6-7. We disagree. The existence of such “exceptional
circumstances” must, under 5 C.F.R. § 842.607(b), be established by a judicial
determination, and the appellant has presented no such judicial determination to
the Board.
Because the appellant elected an unreduced annuity without obtaining a
written waiver from his then-current spouse, and the statutory waiver exception
does not apply, we find that his initial election was invalid. Because the waiver
exception does not apply, we do not reach the appellant’s argument that the
waiver exception operates under 5 U.S.C. § 8445(e) to make the court order
ineffective. PFR File, Tab 1 at 7-8. We find that the court order is valid and
enforceable against the appellant retroactive to the date of his retirement, and that
the appellant’s receipt of an unreduced annuity from January 2015 through
February 2018 resulted in an overpayment.
4 Given the unusual circumstances in this case, it is not clear to us that the advice from
this OPM official was wrong. We are unaware of any established protocol for handling
annuity elections during the pendency of litigation concerning the existence of a current
marriage. Because annuity election options are contingent on marital status, any option
that the appellant might have selected would have been potentially invalid, depending
on the outcome of the litigation. 5
Regarding the amount of the overpayment, the appellant does not directly
challenge the administrative judge’s finding that OPM’s calculation of the
overpayment amount was correct, and we find that her conclusion is supported by
the record. ID at 5. During the 38-month period in question, the appellant
received a gross monthly annuity of $4,036 for 23 months, $4,048 for 12 months,
and $4,128 for 3 months, for a total of $153,788 (($4,036 × 23) + ($4,048 × 12) +
($4,128 × 3)). IAF, Tab 8 at 20. Had the appellant been receiving a fully
reduced annuity to pay for the survivor annuity, he would have received $3,632
for 23 months, $3,642 for 12 months, and $3,714 for 3 months, for a total of
$138,382 (($3,632 × 23) + ($3,642 × 12) + ($3,714 × 3)). Id. at 19.
The difference between these two figures is OPM’s claimed overpayment amount
of $15,406 ($153,788 – $138,382). Id. at 5.
For these reasons, we agree with the administrative judge that OPM proved
the existence and amount of the overpayment by preponderant evidence.
The appellant has not established his right to a waiver.
Recovery of an overpayment may not be made from an individual when, in
the judgment of the OPM, the individual is without fault and recovery would be
against equity and good conscience. 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301.5
The pertinent considerations in finding fault are as follows: (1) whether payment
resulted from the individual’s incorrect, but not necessarily fraudulent, statement,
which he should have known to be incorrect; (2) whether payment resulted from
the individual’s failure to disclose material facts in his possession which he
should have known to be material; or (3) whether he accepted a payment which he
knew or should have known to be erroneous. Maseuli v. Office of Personnel
Management, 111 M.S.P.R. 439, ¶ 7 (2009); 5 C.F.R. § 845.302(a). The
5 The regulatory standards for waiver of overpayments under FERS are substantially
similar, and indeed almost identical, to those under the Civil Service Retirement System
(CSRS). Compare 5 C.F.R. part 831, subpart N, with 5 C.F.R. part 845, subpart C.
We find the case law interpreting the CSRS regulations to be instructive in interpreting
the FERS regulations.6
appellant bears the burden of establishing his entitlement to a waiver by
substantial evidence. 5 C.F.R. §§ 845.307(b), 1201.56(b)(2)(ii).
In this case, the administrative judge found that the appellant was at least
partly at fault for creating the overpayment because he neglected to inform OPM
of the court order, and he failed to question the correctness of his annuity
payments, which did not reflect a 10% reduction. ID at 6-8. On petition for
review, the appellant argues that OPM was at fault for creating the overpayment
because it failed to notify him of his annuity election rights post-divorce so that
he could elect an unreduced annuity. PFR File, Tab 1 at 10-12. Like the
administrative judge, we are unpersuaded by this argument. ID at 7-8. The law
makes no provision for an annuitant to unilaterally cancel a court-ordered
survivor annuity.
Applying the considerations of 5 C.F.R. § 845.302(a) to the facts of this
appeal, we find that the appellant was not without fault in causing the
overpayment. First, we find that the overpayment resulted from incorrect
information that the appellant supplied on his retirement application, i.e., that he
was unmarried at the time of his retirement. IAF, Tab 8 at 36; see Uresti v.
Office of Personnel Management , 108 M.S.P.R. 262, ¶ 9 (2008) (finding that the
appellant was not without fault in creating an overpayment which was caused by
inaccurate information that he provided on his retirement application). We find
that this statement was not fraudulent to the extent that the appellant genuinely
believed that he was unmarried and had not yet received a judicial determination
stating otherwise. Furthermore, there are mitigating circumstances involved
because the appellant discussed the pending state district court proceedings with
an OPM official, who allowed him to select an unreduced annuity regardless.
HCD at 4:55 (testimony of the appellant). Nevertheless, the information that the
appellant supplied on his retirement application was still incorrect, and although
it was not fraudulent in nature, it remains a relevant consideration in the overall
analysis. See 5 C.F.R. § 845.302(a)(1). 7
Second, we find that the overpayment, at least initially, resulted from the
appellant’s failure to disclose material facts to OPM, i.e., the court order
directing the payment of a survivor annuity. See Plewinski v. Office of Personnel
Management, 44 M.S.P.R. 20, 22-23 (1990) (finding that the appellant was not
without fault in causing an overpayment because she failed to inform OPM
promptly of her remarriage, a material fact affecting her entitlement to a survivor
annuity). The record does not reflect the date that OPM actually received the
court order at issue. OPM has not provided any such evidence, and the appellant
testified that he had no information on the matter, although he supposed that
either his or his former spouse’s attorney must have submitted the order to OPM
at some point. HCD at 29:50 (testimony of the appellant). What is clear is that
somebody submitted the order to OPM at least by April 29, 2017, the date that
OPM first notified the appellant that it had processed the order.6 IAF, Tab 8
at 21. We find that the appellant knew or should have known that the court’s
decree was material information, and that it was incumbent upon him to notify
OPM of the fact of his common law marriage, subsequent divorce, and
court-ordered survivor annuity promptly after he received the court’s order, on or
about September 25, 2015.7 Id. at 22-30. Nevertheless, we agree with the
6 On petition for review, the appellant asserts that “OPM was aware of the court order
as of late 2015,” citing “documents on file with the [administrative judge].” PFR File,
Tab 1 at 10. The appellant’s generic citation to the entire record does not approach the
degree of specificity required by the Board’s regulations. See 5 C.F.R. § 1201.114(b)
(stating that a petition for review “must be supported by specific references to the
record). Our review of the record has uncovered no indication that OPM was aware of
the court order prior to April 2017. To the extent that the appellant believes that the
record contains a particular piece of evidence showing something different, he has
failed to provide us with sufficient information to locate that evidence. In any event,
even if OPM were aware of the court order in late 2015, we would still find that the
appellant was partly at fault for the overpayment.
7 Our finding is supported by the appellant’s testimony that he discussed the pending
district court proceedings with an OPM official at the time of his retirement.
HCD at 4:55 (testimony of the appellant). This testimony tends to show that the
appellant knew that his marital status was material to the annuity election issue because
otherwise he would not have brought it up.8
appellant that OPM’s mishandling of his case from April 29, 2017 onward
contributed to the overpayment problem. PFR File, Tab 1 at 9-10. OPM was
clearly in possession of the court order on this date, yet it waited an additional
11 months before taking any action to reduce the appellant’s annuity. Id. at 17.
OPM has provided no explanation for this delay, which we find was unwarranted
and directly contributed to the overpayment. However, as discussed below, even
after this time the appellant remained at least partly at fault for the overpayment’s
continued accrual.
Third, we find that the appellant accepted payments that he knew or should
have known to be erroneous. See Dela Casa v. Office of Personnel Management ,
60 M.S.P.R. 287, 291-92 (1994) (finding that the appellant was not without fault
in causing the overpayment because she accepted payments that she knew or
should have known to be in error). The appellant was twice notified, in his initial
retirement application and in OPM’s April 29, 2017 letter, that the survivor
annuity would result in a reduction in his basic annuity, yet he took no action to
rectify the matter when he continued to receive an unreduced annuity. IAF, Tab 8
at 21, 36. We agree with the administrative judge that the appellant knew or
should have known that he was receiving too much annuity during this time, and
that he was therefore partly responsible for the overpayment. ID at 7.
Conceptually, the 38-month overpayment window can be divided into three
time periods. The first period, from January through September 2015, predates
the divorce decree and survivor annuity order. The second period, from
October 2015 through April 2017, covers the time between the issuance of the
court order and the earliest date on record that OPM had received it. The third
period, from May 2017 through February 2018, covers the period between OPM’s
processing of the order and the beginning of the survivor annuity reductions. The
appellant was more or less at fault for the overpayment that accrued during each
of these periods. The overpayment during the first period was the result of the
appellant’s invalid annuity election based on incorrect information that he9
supplied on his retirement application. Although the appellant may not have
known for certain at the time that this information was incorrect, he had reason to
believe that subsequent events might prove otherwise. During the second period,
the appellant’s responsibility for the overpayment was compounded by his failure
to notify OPM of the results of the divorce proceedings and his continued receipt
of an unreduced annuity, which he knew or should have known was incorrect.
During the third period, OPM itself incurs some fault for failing to begin annuity
reductions promptly upon its processing of the order, but the appellant is not
entirely relieved of his responsibility during this period because he continued to
receive an unreduced annuity, which he knew or should have known was
incorrect, without attempting to rectify the matter.
Because the appellant failed to show by substantial evidence that he was
without fault in causing the overpayment, we have not considered his argument
that recovery would be against equity and good conscience. PFR File, Tab 1
at 9-12; see Gott v. Office of Personnel Management , 97 M.S.P.R. 538, ¶ 8
(2004); Conway v. Office of Personnel Management , 56 M.S.P.R. 82, 85-86
(1992).
The appellant has not shown that the administrative judge was biased.
A party claiming bias or prejudgment by an administrative judge must
overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Higgins v. U.S. Postal Service , 43 M.S.P.R. 66,
68 (1989). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if her comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63
(Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)).
In this case, the appellant argues that, during prehearing settlement
discussions, the administrative judge stated that she was “leaning” toward finding
in favor of OPM. PFR File, Tab 1 at 4-5. However, it is well-settled that an10
administrative judge’s honest appraisal of an appeal does not constitute
extrajudicial conduct and is generally insufficient to establish prejudgment or
bias. See Gensburg v. Department of Veterans Affairs , 85 M.S.P.R. 198, ¶¶ 6, 8
(2000). Administrative judges are permitted to engage in frank settlement
discussions with the parties, and although the appellant might not have liked the
administrative judge’s assessment of his case, the administrative judge did not
exhibit bias by informing him of that assessment. See Herman v. Department of
Justice, 119 M.S.P.R. 642, ¶ 11 (2013).
NOTICE OF APPEAL RIGHTS8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,12
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 13
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Rodriguez_RaulDA-0845-19-0284-I-1__Final_Order.pdf | 2024-07-16 | RAUL RODRIGUEZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0845-19-0284-I-1, July 16, 2024 | DA-0845-19-0284-I-1 | NP |
961 | https://www.mspb.gov/decisions/nonprecedential/Baty_Mary_B_DC-0353-18-0262-I-3__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY B. BATY,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0353-18-0262-I-3
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
LaDonna L. Griffith-Lesesne , Esquire, Landover, 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 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. Except as
expressly MODIFIED to find that the appellant made a nonfrivolous allegation
that the agency denied her request for restoration and to apply Cronin v. U.S.
Postal Service, 2022 MSPB 13, to the jurisdictional analysis, we AFFIRM the
initial decision.
BACKGROUND
The appellant is a Mail Processing Clerk at the Crewe Post Office in
Crewe, Virginia. Baty v. U.S. Postal Service , MSPB Docket No. DC-0353-18-
0262-I-I, Initial Appeal File (IAF), Tab 6 at 54. After partially recovering from a
compensable injury in 2003, she held a series of modified duty assignments until
July 14, 2016, when her treating physician determined that she was unable to
work due to her medical condition. IAF, Tab 5 at 6, Tab 6 at 68, 96. In a
January 19, 2017 work capacity evaluation, another physician determined that the
appellant could return to duty in a modified position involving no more than
4 hours of sitting, 2 hours of walking, 2 hours of standing, and a 20 -pound
pushing, pulling, and lifting restriction. IAF, Tab 6 at 92. Accordingly, on
March 20, 2017, the agency offered her a modified assignment working at both
the Nottoway Post Office and the Crewe Post Office for a combined total of
29 hours each week. Id. at 89. The appellant accepted the offer but expressed2
concerns that it exceeded her medical limitations. Id. at 89-90. Several days
later, the agency offered her a new modified duty assignment working 14 hours
per week at the Crewe Post Office, which she accepted on March 30, 2017. Id.
at 56, 86-87.
On July 10, 2017, the appellant initiated informal equal employment
opportunity (EEO) counselor contact, alleging that the agency discriminated and
retaliated against her when it “refused to schedule [her] hours to work.” Id.
at 27-29. She filed a formal complaint of discrimination with the agency on
August 17, 2017. Id. at 31.
On September 9, 2017, the agency offered the appellant another modified
duty assignment consisting of approximately 30 hours of work per week, again
divided between the Nottoway and Crewe Post Offices. Id. at 83. She accepted
the offer on September 11, 2017. Id. On November 21, 2017, the Equal
Employment Opportunity Commission’s Office of Federal Operations (OFO)
issued a decision in the appellant’s 2015 EEO appeal, finding that the agency
failed to accommodate her and ordering the agency to provide her an ergonomic
chair, to modify the front counter consistent with the use of an ergonomic chair,
and to schedule her for 8 hours of consecutive work per day. Id. at 67-77.
Accordingly, on January 2, 2018, the agency offered the appellant an 8 -hour per
day modified duty assignment at the Nottoway Post Office. Id. at 64-65. On
January 3, 2018, the appellant accepted the offer. Id. at 64.
On January 26, 2018, the agency issued a final agency decision (FAD) in
connection with the appellant’s August 17, 2017 formal complaint of
discrimination, finding that management did not discriminate against her by
offering her less than 40 hours of modified work per week. Id. at 32-52. The
FAD notified the appellant that she had the option of appealing the decision to the
Board as a mixed case or filing a civil action in U.S. district court. Id. at 50-51.
The appellant timely filed the instant mixed case appeal with the Board arguing3
that the agency denied her request for restoration, and alleging discrimination
based on disability and retaliation for prior EEO activity. IAF, Tab 1.
In an order to show cause, the administrative judge notified the appellant of
her burden to establish the Board’s jurisdiction over her appeal by nonfrivolously
alleging that she had partially recovered from a compensable injury and that the
agency arbitrarily and capriciously denied her request to return to work. IAF,
Tab 2 at 2-4. The appellant responded that the agency violated her restoration
rights when, from March 25, 2017, until January 1, 2018, it did not provide her
40 hours of work even though she held a 40-hour per week limited duty
assignment before leaving work for medical reasons on July 16, 2016. IAF, Tab 5
at 4. She appeared to allege that the agency’s denial of 40 hours of work was
arbitrary and capricious because her supervisor failed to make accommodations to
the front desk and assigned part-time employees the hours and tasks that should
have been assigned to her. Id. at 4, 7; IAF, Tab 8 at 5; Baty v. U.S. Postal
Service, MSPB Docket No. DC-0353-18-0262-I-3, Refiled Appeal File (RAF),
Tab 4 at 4-7.
The agency argued that the Board lacked jurisdiction over the appellant’s
appeal because it did not deny her request for restoration, but rather offered her
three different modified assignments that restored her to duty. IAF, Tab 6
at 15-16. The agency further argued that, even if the appellant nonfrivolously
alleged that she was denied restoration, she failed to nonfrivolously allege that
such denial was arbitrary and capricious because she did not identify any
additional work that was available within her restrictions at or below the level of
a Level 6 Mail Processing Clerk within 50 miles of the Crewe Post Office. Id.
at 16-17, 58. Regarding the 8 hour per day modified assignment offered to the
appellant in January 2018, the agency explained that it offered her the position
pursuant to the OFO decision even though the Nottoway Post Office is only open
4 hours per day, the official clerk position is a 4 hour per day position, and there
is not 8 hours of productive work to be performed there daily. Id. at 12, 16-17.4
Thus, the agency argued that the full-time position at Nottoway Post Office was
not a vacant funded position and that it was not obligated to offer it to the
appellant as part of its restoration obligations. Id. at 17.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. RAF,
Tab 5, Initial Decision (RID).
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 5.
ANALYSIS
The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries
enjoy certain rights to be restored to their previous or comparable positions.
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.
The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097, 1103-04 (Fed. Cir.
2011), superseded in part by regulation on other grounds as stated in Kingsley ,
123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304(c). Thus, to establish jurisdiction
over a claim of denial of restoration as a partially recovered employee, an5
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. See Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 12
(2016); 5 C.F.R. § 1201.57(a)(4), (b). Here, it is undisputed that the appellant
satisfied the first two jurisdictional criteria because she was absent from her
position due to a compensable injury and recovered sufficiently to return to work.
ID at 6; IAF, Tab 5 at 6, Tab 6 at 92-98. As to the third jurisdictional element,
although it is undisputed that the agency restored the appellant to modified
assignments during the relevant period, she argued that the agency denied her
restoration by failing to provide her 40 hours of work per week. IAF, Tab 5 at 4;
Tab 6 at 83-90; RAF, Tab 4 at 5-7.
The administrative judge found that the appellant did not nonfrivolously
allege that the agency’s decision to assign her various work assignments totaling
fewer than 40 hours of work per week between March 2017 and January 2018 was
“so unreasonable” as to constitute a denial of restoration. ID at 7. We disagree
with the administrative judge’s analysis. The record shows that the appellant was
a full-time employee, but when she requested restoration, the agency only offered
her part-time work. IAF, Tab 6 at 54, 83-90. There is no indication that the
appellant requested anything less than full-time restoration, and so it is
undisputed that, during the time period at issue, the agency denied the appellant’s
request for restoration in part. The Board has held that the reduction in hours of a
previously afforded modified assignment constitutes an appealable denial of
restoration for the number of hours by which the assignment was reduced. E.g.,
Scott v. U.S. Postal Service , 118 M.S.P.R. 375, ¶¶ 8-10 (2012); Kinglee v. U.S.
Postal Service, 114 M.S.P.R. 473, ¶ 14 (2010). The administrative judge declined
to apply that rule to the instant appeal based on the agency’s reasons for reducing6
the appellant’s work hours. ID at 7-8. However, we find that an agency’s
reasons for involuntarily reducing an employee’s work hours are irrelevant to
determining whether a denial of restoration occurred. Instead, the agency’s
reasoning goes to the final jurisdictional inquiry, i.e., whether the appellant made
a nonfrivolous allegation that the denial of restoration was arbitrary and
capricious.
On that issue, the administrative judge found that the appellant failed to
make a nonfrivolous allegation that any denial of restoration was arbitrary and
capricious. ID at 8-10. On review, the appellant argues that this was error and
reiterates that the agency arbitrarily and capriciously denied her restoration to a
40-hour per week position by assigning available hours and work to part-time
employees. PFR File, Tab 1 at 7-10. Although we agree with the administrative
judge that the appellant failed to nonfrivolously allege that any denial of
restoration position was arbitrary and capricious, we modify the initial decision to
clarify the basis of this holding.
After the initial decision in this appeal was issued, the Board issued a
decision in Cronin, 2022 MSPB 13, overruling prior precedent, including Latham
v. U.S. Postal Service , 117 M.S.P.R. 400 (2012), and its progeny, to the extent
they held that a denial of restoration may be arbitrary and capricious on the basis
of an agency’s failure to comply with its self -imposed restoration obligations.
Cronin, 2022 MSPB 13, ¶ 20. The Board in Cronin held that, although agencies
may undertake restoration efforts beyond the minimum effort required by OPM
under 5 C.F.R. § 353.301(d), an agency’s failure to comply with self-imposed
obligations cannot itself constitute a violation of 5 C.F.R. § 353.301(d) such that
a resulting denial of restoration would be rendered arbitrary and capricious for
purposes of establishing Board jurisdiction under 5 C.F.R. § 353.304(c). Id.,
¶ 20. Rather, 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 a7
partially recovered employee and to consider her for any such vacancies. See id.
The Board in Cronin further held that, contrary to the suggestion in Latham,
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. 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.
Under Cronin, to satisfy the fourth jurisdictional criterion, the appellant
must nonfrivolously allege that the agency failed to search within the local
commuting area for vacant positions to which it could restore her and to consider
her for any such vacancies. Cronin, 2022 MSPB 13, ¶ 20. The appellant has not
made such an allegation here, nor has she challenged the sworn statement of her
supervisor that “[a]ll full-time Postal Service positions within 50 miles of Crewe
Post Office at or below the level of a Level 6 Mail Processing Clerk require either
walking or standing more than two hours, pushing, pulling, and lifting more than
20 lbs., or combinations of multiple of these requirements.”2 IAF, Tab 5, Tab 6
at 38, Tab 8; RAF, Tab 4; PFR File, Tab 1. Rather, she argues that the agency
could have returned her to her prior full -time modified duty assignment with
certain accommodations and that there were hours of work and tasks she could
perform that the agency improperly assigned to part -time employees instead of
her. IAF, Tab 5 at 4-5; RAF, Tab 4 at 5-7; PFR File, Tab 1 at 8-10. However,
she has not alleged that her prior modified assignment was an established vacant
position or that the various hours and tasks she could perform constituted the
essential functions of an established position. Accordingly, under Cronin, her
2 Although the agency ultimately offered the appellant a full-time modified assignment
pursuant to OFO’s decision, the agency has explained, without contradiction, that this
position was created solely to comply with OFO’s order to place the appellant in an
assignment with 8 consecutive hours of work per day. IAF, Tab 6 at 12-13, 16-17.
Thus, we find no nonfrivolous allegation that the 8 hour per day modified assignment
constituted a vacant funded position that the agency would have found had it conducted
a proper search prior to January 2018. See Cronin, 2022 MSPB 13, ¶ 20.8
arguments do not constitute a nonfrivolous allegation that the denial of
restoration was arbitrary and capricious. See Cronin, 2022 MSPB 13, ¶ 20.
In light of the foregoing, we find that the administrative judge properly
dismissed this appeal for lack of jurisdiction. ID at 10. We further agree with the
administrative judge’s determination that, absent jurisdiction, the Board cannot
reach the appellant’s claims of discrimination and retaliation. Id.; see Desjardin,
2023 MSPB 6, ¶ 21 (holding that the Board will adjudicate discrimination and
retaliation claims raised in connection with denials of restoration over which it
has jurisdiction).
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 12
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Baty_Mary_B_DC-0353-18-0262-I-3__Final_Order.pdf | 2024-07-16 | MARY B. BATY v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0353-18-0262-I-3, July 16, 2024 | DC-0353-18-0262-I-3 | NP |
962 | https://www.mspb.gov/decisions/nonprecedential/Logan_Yvonne_H_DC-0752-22-0454-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YVONNE H. LOGAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DC-0752-22-0454-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marisa L. Williams , Esquire, Englewood, Colorado, for the appellant.
Brandon Truman , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s downgrade for unsatisfactory work performance under
chapter 75. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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 generally argues that the
administrative judge made erroneous factual findings in sustaining the agency’s
charge and its penalty. Petition for Review (PFR) File, Tab 1 at 4-8. We find
that her arguments are a mere disagreement with the administrative judge’s well-
reasoned conclusions, and we find no basis to disturb these findings. 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);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
To the extent that the appellant raised an affirmative defense of disparate penalty,
she effectively waived or abandoned her claim.
¶3The appellant also appears to argue on review that the agency treated her
differently than a similarly situated employee when it downgraded her from an
EAS-22 Postmaster to a Level 18B Postmaster. PFR File, Tab 1 at 8. In her
initial appeal, the appellant argued that “other similarly situated employees were
not subjected to discipline or to such excessively harsh punishment.” Initial
Appeal File (IAF), Tab 1 at 6. The administrative judge did not include this as an
issue for adjudication in the prehearing conference summary nor did he render2
findings on the claim in the initial decision. IAF, Tab 27 at 2, 7-11; Initial
Decision at 30-38. The Board has recently affirmed the general proposition that,
when an appellant raises an affirmative defense, the administrative judge must
address the affirmative defense in a close of record order or prehearing
conference summary. Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 10, 17
n.7. In circumstances when the administrative judge fails to address the
affirmative defense in the adjudication of the appeal, the Board has set forth a
nonexhaustive list of factors to be considered when determining whether remand
is necessary for an administrative judge to address the affirmative defense. Id.,
¶ 18.
¶4Applying the relevant factors, we find that to the extent the appellant
previously attempted to raise this affirmative defense, she effectively waived or
abandoned the claim. See id., ¶¶ 17-18 (identifying the nonexhaustive list of
factors the Board should consider in assessing whether a previously raised
affirmative defense claim was abandoned or waived, including, among others: (1)
the degree to which the appellant continued to pursue her affirmative defense in
the proceedings below after initially raising it; (2) whether the appellant objected
to a summary of the issues to be decided that failed to include the potential
affirmative defense when she was specifically afforded an opportunity to object
and the consequences of her failure were made clear; (3) whether the appellant
raised her affirmative defense or the administrative judge’s processing of the
affirmative defense claim in her petition for review; and (4) whether the appellant
was represented during the course of her appeal).
¶5Although the appellant raises a claim of a disparate penalty on review, PFR
File, Tab 1 at 8, the record is devoid of evidence that she pursued this claim
below. Aside from the single reference in her initial appeal, the appellant, who
was represented by an attorney, did not raise this claim in any of the other
pleadings in the record below and did not object to the administrative judge’s
failure to include this as an issue to be determined at hearing. Further, the3
appellant did not introduce any relevant comparator evidence below. Therefore, a
remand for consideration of this claim is unnecessary. Accordingly, we affirm
the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 | Logan_Yvonne_H_DC-0752-22-0454-I-1__Final_Order.pdf | 2024-07-16 | YVONNE H. LOGAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-22-0454-I-1, July 16, 2024 | DC-0752-22-0454-I-1 | NP |
963 | https://www.mspb.gov/decisions/nonprecedential/Stewart_Sharon_L_DA-0752-19-0527-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON L. STEWART,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-19-0527-I-1
DATE: July 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gerald Mitchell , Memphis, Tennessee, for the appellant.
Steven Coney , Dallas, 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 appeal of her separation for lack of jurisdiction. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to address the appellant’s new evidence and argument
relating to her attempts to exhaust her administrative remedy under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), we AFFIRM the initial decision.
BACKGROUND
The appellant was employed by the agency as a City Carrier. Stewart v.
U.S. Postal Service , MSPB Docket No. DA-0752-19-0527-I-1, Initial Appeal File
(IAF) Tab 5 at 56. The agency issued her a notice of removal on July 26, 2018,
and her last day in a pay status was August 27, 2018. IAF, Tab 1 at 49, Tab 5
at 11-13, Tab 8 at 3. The appellant first appealed her removal to the Board in
2018, and in a November 7, 2018 initial decision, the administrative judge
dismissed the appeal for lack of jurisdiction. Stewart v. U.S. Postal Service ,
MSPB Docket No. DA -0752-19-0011-I-1, Initial Decision (0011 ID) (Nov. 7,
2018). The administrative judge found that the appellant failed to nonfrivolously
allege that she was a preference eligible employee, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
non-confidential clerical capacity. Id. at 6. Accordingly, the administrative
judge found that the Board lacked jurisdiction over the appeal under chapter 75.2
Id. The appellant did not file a petition for review of that initial decision, and it
became final on December 12, 2018.
Approximately 9 months after the initial decision in her first appeal became
final, the appellant filed the instant appeal of her separation. IAF, Tab 1 at 2.
She indicated that she was filing an appeal under USERRA and/or the Veterans
Employment Opportunities Act of 1998 (VEOA), and that she had filed a
complaint with the Department of Labor (DOL) on September 5, 2019, but had
neither received a decision from DOL nor notified DOL that she intended to file
an appeal with the Board. Id. at 3.
The administrative judge informed the appellant of how to establish the
Board’s jurisdiction under chapter 75, and ordered her to file evidence and
argument on the issue. IAF, Tab 2 at 2. The administrative judge also informed
the appellant that because DOL had not notified her that it had closed her
USERRA complaint, it appeared the Board lacked jurisdiction over that claim.
IAF, Tab 8 at 2.
On October 23, 2019, the administrative judge issued an initial decision,
dismissing the appeal for lack of jurisdiction without holding the appellant’s
requested hearing. IAF, Tab 1 at 1, Tab 12, Initial Decision (ID).
The administrative judge again found that the appellant failed to nonfrivolously
allege that she was a preference eligible employee, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
non-confidential clerical capacity. ID at 6. Accordingly, the administrative
judge found that the Board lacked jurisdiction under chapter 75. Id. Similarly,
because the appellant failed to nonfrivolously allege that she was preference
eligible, the administrative judge found that the Board lacked jurisdiction over
the appellant’s VEOA claim that the agency violated her veterans’ preference
rights. ID at 7 n.9.
The administrative judge also determined that the Board lacked jurisdiction
over the appellant’s USERRA claim because DOL had not notified her that it had3
closed her USERRA complaint. ID at 7-8. The administrative judge concluded
that, to the extent the appellant alleged that the agency discriminated against her
or committed harmful procedural error, such allegations could not be reviewed
absent an otherwise appealable action.2 ID at 6 n.8.
The appellant has filed a petition for review, asserting that the
administrative judge “has erred generally,” and requesting that the Board accept
jurisdiction over her appeal. Petition for Review (PFR) File, Tab 1.
The appellant has also filed a supplement to her petition for review, in which she
asserts various wrongdoings by both the agency and the administrative judge.
PFR File, Tab 3 at 1-8. For instance, the appellant argues that the agency
committed harmful error, a prohibited personnel practice, and failed to mitigate
the penalty, id. at 1, and that the administrative judge made false statements in
violation of 18 U.S.C. § 1001 and abused her office in violation of 25 C.F.R.
§ 11.448, id. at 3-5. The agency filed a response to the petition for review. PFR
File, Tab 4.
After the record closed on review, the appellant filed an additional
submission. PFR File, Tab 5 at 1. The appellant has not filed a motion for the
Board to accept her untimely submission. PFR File, Tab 6. Therefore, except as
discussed below to address the appellant’s new evidence regarding exhaustion, we
have not considered this additional submission. See 5 C.F.R. § 1201.114(a)(5),
(k) (explaining that the record on review closes after the deadline for filing the
reply to a response to a petition for review, and that after that point the Board
generally only will accept new and material arguments and evidence).
2 Given her jurisdictional findings, the administrative judge declined to make any
findings regarding the timeliness of the appeal or whether the appellant’s claims were
barred by the doctrine of collateral estoppel. ID at 2 nn.1-2. 4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the appellant failed to
nonfrivolously allege that she is preference eligible as required to establish the
Board’s jurisdiction under chapter 75 and VEOA.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
of establishing jurisdiction over her appeal. 5 C.F.R. §§ 1201.56(b)(2)(i)
(A), .57(b).
To appeal an adverse action under chapter 75, a Postal employee must, as
relevant here, be a preference eligible, a management or supervisory employee, or
an employee engaged in personnel work in other than a purely non-confidential
clerical capacity. Sanchez v. U.S. Postal Service , 114 M.S.P.R. 345, ¶ 21 (2010).
When an appellant makes a nonfrivolous allegation that the Board has jurisdiction
over an adverse action appeal, she is entitled to a hearing on the jurisdictional
question. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
A nonfrivolous allegation is an assertion that, if proven, could establish the
matter at issue. 5 C.F.R. § 1201.4(s). Similarly, to establish Board jurisdiction
over a veterans’ preference appeal brought pursuant to 5 U.S.C. § 3330a(a)(1)(A),
an appellant must make nonfrivolous allegations, as relevant here, that she is a
preference eligible within the meaning of VEOA.3 Lazaro v. Department of
3 Although the administrative judge did not notify the appellant of this VEOA
jurisdictional requirement prior to closing the record below, any error was cured by the
initial decision, which stated the requirement. IAF, Tab 8 at 3; ID at 7 n.9;
see Parker v. Department of Housing and Urban Development , 106 M.S.P.R. 329, ¶ 8
(2007) (explaining that an administrative judge’s failure to provide proper jurisdictional
notice can be cured if the notice is provided in the agency’s pleadings or the initial
decision, thus affording an appellant the opportunity to meet his jurisdictional burden
on petition for review). With her petition for review, the appellant submitted her
August 2015 DD-214. PFR File, Tab 1 at 4. We have considered this document, which
was already in the record below, because it is relevant to the Board’s jurisdiction, a
matter that may be raised at any time during the Board proceedings. See
Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016 ).5
Veterans Affairs , 666 F.3d 1316, 1319 (Fed. Cir. 2012); Durand v. Environmental
Protection Agency , 106 M.S.P.R. 533, ¶ 11 (2007).
The administrative judge found that the appellant failed to nonfrivolously
allege that she was a management or supervisory employee, or an employee
engaged in personnel work in other than a purely non-confidential clerical
capacity. ID at 5-6. The parties do not challenge that finding on review, and we
discern no reason to disturb it.
Instead, the appellant reasserts that she is a preference eligible, specifically
pointing to her years of military service, her military medals and other awards,
and the disability information contained on her DD-214. PFR File, Tab 1 at 1, 4;
IAF, Tab 1 at 1, Tab 10 at 3. We agree with the administrative judge that the
appellant failed to make a nonfrivolous allegation that she was a preference
eligible under any of these alternatives. ID at 5-6, 7 n.9. For purposes of both
chapter 75 jurisdiction in appeals by Postal employees and for jurisdiction under
VEOA, the term “preference eligible” is defined by 5 U.S.C. § 2108(3).
See Clark v. U.S. Postal Service , 118 M.S.P.R. 527, ¶¶ 7-8 (2012) (making this
finding as to the Board’s jurisdiction over Postal employees in chapter 75
appeals); Brewer v. Department of Veterans Affairs , 111 M.S.P.R. 563, ¶ 5 (2009)
(making this finding in a VEOA appeal).
One of the ways an appellant may establish that she is preference eligible
under section 2108(3) is by showing that she served on active duty in the armed
forces during a war. 5 U.S.C. § 2108(1)(A), (3)(A); Sellers v. U.S. Postal
Service, 98 M.S.P.R. 44, ¶ 9 (2004). The last war for which active duty is
qualifying for veterans’ preference is World War II, qualifying service for which
ended in 1952. Durand, 106 M.S.P.R. 533, ¶¶ 15-17. In addition, provided other
requirements are met, certain other periods of service may serve as the basis for
preference eligibility, including during periods between 1952 and 1976, 1990 and
1992, and 2001 and 2010. 5 U.S.C. § 2108(1)(A)-(D), (3)(A)-(B); 5 C.F.R.
§ 211.102(a). The appellant served on active duty with the U.S. Army during the6
following periods: (1) May 23 to October 17, 1984; (2) November 20, 1985, to
December 9, 1987; and (3) May 12, 2013, to September 25, 2015. IAF, Tab 5
at 59-63, Tab 9 at 10. None of these periods of service fall within the dates,
listed above, which may serve as a basis for a finding of preference eligibility.
An appellant may also establish that she is preference eligible by
demonstrating that she served “during . . . a campaign or expedition for which a
campaign badge has been authorized.” 5 U.S.C. § 2108(1)(A), (3).
These provisions require an appellant to prove both that she was on active duty in
the armed forces during or at the time of the campaign, and that she actually
served in the campaign or expedition for which the campaign badge was
authorized. Sellers, 98 M.S.P.R. 44, ¶ 9. An employee’s DD-214 form showing
receipt of any Armed Forces Expeditionary Medal is acceptable proof
of entitlement to veterans’ preference. Id., ¶ 10. Here, none of the appellant’s
DD-214 forms reflect that she has received an Armed Forces Expeditionary
Medal. IAF, Tab 5 at 59-63, Tab 9 at 10. To the extent the appellant is relying
on her dates of service to qualify as a preference eligible, such evidence is
insufficient by itself.
The appellant also refers to the “military disability information” contained
in her last DD-214. PFR File, Tab 1 at 1, 4. As defined under Title 5, although a
preference eligible includes a “disabled veteran,” that term is limited to an
individual who “has established the present existence of a service -connected
disability or is receiving compensation, disability retirement benefits, or pension
because of a public statute administered by the Department of Veterans Affairs or
a military department.” 5 U.S.C. § 2108(2), (3)(C). The Board has found that an
appellant can establish her status as a disabled veteran with, among other
evidence showing she was honorably discharged from the armed forces, a letter
from the Department of Veterans Affairs stating that she receives disability
compensation because of a service-connected disability. Carey v. U.S. Postal
Service, 50 M.S.P.R. 359, 361-62 (1991). Here, the appellant has provided no7
such letter or other documentation showing she has a service-connected
disability. Instead, the appellant references her August 2015 DD-214, which
reflects that her service in the U.S. Army was honorable and that the narrative
reason for her separation was “DISABILITY PERMANENT (ENHANCED).”
IAF, Tab 9 at 10. However, neither this document nor any others in the record
reflect that the appellant’s disability is service-connected, or that she otherwise
qualifies as a disabled veteran. Nor has the appellant nonfrivolously alleged facts
reflecting that she meets the definition of a disabled veteran.
Accordingly, we discern no reason to disturb the administrative judge’s
finding that the appellant failed to nonfrivolously allege that she is a preference
eligible. We therefore affirm the administrative judge’s finding that the appellant
failed to nonfrivolously allege the Board’s jurisdiction under chapter 75
or VEOA.4
The appellant failed to establish the Board’s jurisdiction under USERRA.
The administrative judge found that the Board lacked jurisdiction over any
claim the appellant sought to assert under USERRA because she did not exhaust
her administrative remedy. ID at 7-8. We affirm this finding, as modified below
to address the appellant’s new argument and evidence on review.
An appellant may file a USERRA complaint directly with the Board
without filing a complaint with DOL. Becker v. Department of Veterans Affairs ,
107 M.S.P.R. 327, ¶ 12 (2007). However, when an appellant first seeks the
Secretary of Labor’s assistance by filing a USERRA complaint with DOL before
4 The agency argues that the finding in the November 7, 2018 initial decision that the
appellant is not a Postal employee who has chapter 75 appeal rights, including that she
is not preference eligible, should be given preclusive effect under the doctrine of
collateral estoppel. PFR File, Tab 4 at 9-11; 0011 ID at 5-6. The agency also argues
that the Board should defer to an arbitrator’s decision to deny a union grievance of the
appellant’s removal. PFR File, Tab 4 at 12; IAF File, Tab 1 at 30-45. When the
requirements of collateral estoppel are met, it is not error to decline to apply the
doctrine. Kroeger v. U.S. Postal Service , 865 F.2d 235, 239 (Fed. Cir. 1988 ).
Given our disposition, we need not address the agency’s arguments concerning these
alternative bases for dismissal.8
filing an appeal with the Board, she must exhaust her administrative remedies
prior to submitting her USERRA complaint to the Board. Id. USERRA does not
provide for exhaustion before DOL as a matter of time; to exhaust her DOL
remedy, an appellant must actually receive notice that the Secretary’s efforts did
not resolve the appellant’s complaint. Id. (citing 38 U.S.C. § 4324(b)).
Alternatively, if an appellant has requested that the Secretary of Labor refer
her complaint to the Office of Special Counsel (OSC) for litigation before the
Board, USERRA requires that the appellant receive a notice from OSC that it has
declined to initiate an action and represent the appellant before the Board.
Heckman v. Department of the Interior , 109 M.S.P.R. 133, ¶ 24 (2008) (citing
38 U.S.C. § 4324(a)(2)(B), (b)(4)), overruled on other grounds by Garcia v.
Department of Agriculture , 110 M.S.P.R. 371, ¶¶ 8-13 (2009). An appellant has
the burden of proving exhaustion of his USERRA complaint by preponderant
evidence. 5 C.F.R. § 1201.57(a)(3), (c)(1).
The appellant indicated in her initial appeal form that she filed a complaint
under USERRA with DOL, that DOL had not made a decision on her complaint,
and that she had not notified DOL of her intent to file an appeal with the Board.
IAF, Tab 1 at 3; PFR File, Tab 3 at 12. The administrative judge found that
because DOL had not notified the appellant that it had closed her USERRA
complaint, the Board lacked jurisdiction over her USERRA claim. ID at 7-8.
On review, the appellant provides evidence that she requested that DOL
refer her USERRA complaint to OSC. PFR File, Tab 3 at 11-13. She also asserts
that she received a letter from DOL stating that it had referred her USERRA
complaint to OSC on January 2, 2020. PFR File, Tab 5 at 1. Even assuming the
appellant’s assertion to be true, a referral of a USERRA complaint from DOL to
OSC does not exhaust the appellant’s administrative remedies. Instead, under
such circumstances, USERRA further requires that the appellant receive a notice9
from OSC that it has declined to initiate an action and represent the appellant
before the Board.5 Heckman, 109 M.S.P.R. 133, ¶ 24.
OSC is required to decide within 60 days from receiving DOL’s referral
whether to represent the person who filed the complaint and notify such person in
writing of such decision. 38 U.S.C. § 4324(a)(2)(B). However, we are unaware
of any law, rule, or regulation conferring jurisdiction on the Board if OSC fails to
provide such a notification within the specified period of time. See 38 U.S.C.
§ 4324(b)(3)-(4) (providing that a person may submit a USERRA complaint
directly to the Board after receiving OSC’s decision); Graham v. Commodity
Futures Trading Commission , 105 M.S.P.R. 392, ¶ 6 n.* (2007) (explaining that
if DOL had referred an appellant’s USERRA complaint to OSC, the appellant
could not have submitted his USERRA claim to the Board until OSC informed
him that it had declined to initiate an action before the Board on the appellant’s
behalf), aff’d, 348 F. App’x 564 (Fed. Cir. 2009). Because the appellant filed a
USERRA complaint with DOL and has failed to show that she exhausted her
administrative remedies regarding that complaint, the Board lacks jurisdiction
over her USERRA claim.
As indicated above, we agree with the administrative judge, even after
considering the appellant’s new evidence and argument submitted on review, that
she has failed to prove exhaustion. The appellant may refile her USERRA claim
with the Board should it become ripe for adjudication because she has received
notice from OSC denying representation. See Goldberg v. Department of
Homeland Security , 104 M.S.P.R. 215, ¶ 14 (2006).
5 The administrative judge did not explain to the appellant that, if DOL referred her
USERRA complaint to OSC, to establish exhaustion she would then need show that she
received notice from OSC that it declined to initiate an action based on that USERRA
complaint. Nevertheless, the appellant has continued on review to provide information
regarding the processing of her USERRA complaint and indicated that she would have
provided such notice from OSC if she had it. PFR File, Tab 5. Because the appellant’s
evidence and argument relating to exhaustion concerns the Board’s jurisdiction, we
have considered it here. See Pirkkala, 123 M.S.P.R. 288, ¶ 5.10
The appellant’s other arguments on review do not provide a basis for granting the
petition.
On review, the appellant requests that she be allowed to engage in
discovery and fully develop her appeal. PFR File, Tab 1 at 2. Discovery requests
and responses thereto are not to be filed in the first instance with the Board.
5 C.F.R. § 1201.71. The administrative judge properly advised the parties that
they could initiate discovery by serving requests on each other. IAF, Tab 2
at 3-4; 5 C.F.R. § 1201.73(a). Here, there is no indication that the appellant
attempted to utilize the Board’s discovery procedures below, and she did not file
a motion to compel. Accordingly, she is precluded from raising this issue on
review. See Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5
(2005) (finding that an appellant’s failure to file a motion to compel below
precludes him from raising a discovery dispute for the first time on petition for
review), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
The appellant has submitted on review a copy of a Freedom of Information
Act (FOIA) request that she made to the agency after the record closed below.
PFR File, Tab 3 at 14-19. We decline to consider this evidence because it is not
material to the jurisdictional issue. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight
to warrant an outcome different from that of the initial decision). Specifically,
the Board does not have jurisdiction to enforce FOIA. See Cortright v.
Department of Transportation , 37 M.S.P.R. 565, 570 (1988) (finding that the
Board does not have jurisdiction over the issue of whether an agency violated
FOIA). That authority rests with the Federal courts. 5 U.S.C. § 552(a)(4).
The appellant argues on review that the agency, among other various
wrongdoings, committed harmful error, a prohibited personnel practice, and failed
to mitigate the penalty of removal. PFR File, Tab 3 at 1. However, absent an11
otherwise appealable action, the Board lacks jurisdiction to consider such
arguments. See Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012).
The appellant also asserts on review that the agency and the administrative
judge committed various crimes.6 PFR File, Tab 3 at 3-5. We construe the
appellant’s assertion that the administrative judge abused her office as an
argument that she was biased. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions evidence “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Bieber v. Department of
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)). An administrative judge’s findings,
even if erroneous, are insufficient in themselves to establish bias. Myers v.
Department of Agriculture , 81 M.S.P.R. 496, ¶ 29 (1999). Here, the appellant has
merely asserted in a conclusory fashion that the administrative judge erred, made
false statements, and abused her authority. PFR File, Tab 3 at 3-5.
These allegations are insufficient to establish bias.7
6 The Board lacks jurisdiction to resolve, in these proceedings, whether the agency or
the administrative judge violated the criminal laws cited by the appellant. See Maddox,
759 F.2d at 10 (finding that the Board’s jurisdiction is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation).
7 The agency argues that the appellant’s petition for review is untimely, as measured
from the date she was required to file a petition for review of the first initial decision,
dated November 7, 2018. PFR File, Tab 4 at 11. We are not persuaded. The appellant
filed a timely petition for review within 35 days of the initial decision in the instant
appeal. ID at 1, 9; see 5 C.F.R. § 1201.114(e) (explaining that a petition for review is
timely if filed within 35 days of the issuance of the initial decision). Thus, the petition
for review is timely.12
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Stewart_Sharon_L_DA-0752-19-0527-I-1__Final_Order.pdf | 2024-07-16 | SHARON L. STEWART v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-19-0527-I-1, July 16, 2024 | DA-0752-19-0527-I-1 | NP |
964 | https://www.mspb.gov/decisions/nonprecedential/Gamberdella_Timothy_B_CH-0752-20-0226-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY B. GAMBERDELLA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-20-0226-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy B. Gamberdella , Hoffman Estates, Illinois, pro se.
Adam G. Eisenstein , Esquire, and 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 for lack of jurisdiction his appeal alleging that his retirement was
involuntary. On petition for review, the appellant argues that the initial decision
should be vacated because the Board lacks jurisdiction and 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).
judge improperly made certain findings. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you3
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Gamberdella_Timothy_B_CH-0752-20-0226-I-1__Final_Order.pdf | 2024-07-15 | TIMOTHY B. GAMBERDELLA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-20-0226-I-1, July 15, 2024 | CH-0752-20-0226-I-1 | NP |
965 | https://www.mspb.gov/decisions/nonprecedential/Flores_MarisolSF-315H-19-0521-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARISOL FLORES,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-315H-19-0521-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sean T. O’Bryan , Esquire, San Diego, California, for the appellant.
Ann L. Maley , Esquire, 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
The appellant has filed a petition for review of the initial decision, which
affirmed her removal for pre-appointment reasons. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a Social Insurance Specialist with the Social Security
Administration (SSA). Initial Appeal File (IAF), Tab 5 at 45-46. She was hired
under a career-conditional appointment, effective August 31, 2018, and was
subject to a 1-year probationary period. Id. Prior to her appointment, she filled
out an Optional Form 306 (OF-306). Id. at 43-44. Therein, she answered “no” on
question 12 asking:
During the last 5 years, have you been fired from any job for any
reason, did you quit after being told that you would be fired, did you
leave any job by mutual agreement because of specific problems, or
were you debarred from Federal employment by the Office of
Personnel Management or any other Federal agency?
Id. at 43. The appellant recertified the form on her first day of employment with
the SSA. Id. at 44.
The appellant subsequently filled out a Questionnaire for Public Trust
Positions, Standard Form 85P (SF-85P), on February 7, 2019. Id. at 35-42.
Therein, she answered “yes” when asked:2
Has any of the following happened to you in the last 7 years? Fired
from a job. Quit after being told you’d be fired. Left a job by
mutual agreement following allegations of misconduct. Left a job by
mutual agreement following allegations of unsatisfactory
performance. Left a job for other reasons under unfavorable
circumstances.
Id. at 38. On the SF-85P, she clarified that, in May of 2018, she left a job by
mutual agreement following allegations of unsatisfactory performance. Id.
She identified the reason being an “[i]llegal company policy, currently being
sued. Company pursues illegal employee time keeping practices.” Id.
Prior to her employment with the SSA, the appellant had filed an appeal
with the California Unemployment Insurance Appeals Board (CUIAB)
challenging her disqualification from unemployment benefits after her
termination from her prior employer. IAF, Tab 22 at 23-25. Therein, the CUIAB
found that the appellant “was dismissed from her most recent employment for
reasons other than misconduct,” and thus she was “not subject to
disqualification.” Id. at 25. This information was not previously disclosed to the
agency.
Following her responses on the SF-85P, a Human Resources (HR)
Specialist with the agency contacted the appellant to discuss the discrepancies in
her answers. IAF, Tab 5 at 33. According to the HR Specialist’s
contemporaneous notes of the conversation, the appellant stated that she “was
fired I guess . . . if you want to say so . . . I didn’t comply [with the company’s
policy] and they let me go.” Id. When asked why she did not indicate this firing
on her OF-306, the appellant stated that she thought she checked “yes,” and
thought she listed that she had been fired. Id. at 33-34.
On June 7, 2019, the agency terminated the appellant effective that day.
Id. at 30-31. The termination memorandum noted that the appellant gave
inaccurate information when she answered “no” on question 12 on the OF-306,
and later reaffirmed the inaccurate information on the same form. Id.3
The appellant thereafter filed the instant appeal, alleging that the agency violated
her rights when it terminated her for pre-appointment reasons without giving her
advance notice of the proposed action and an opportunity to answer. IAF, Tab 1
at 4. The administrative judge subsequently held a hearing in this matter.
IAF, Tab 31, Hearing Compact Disc (HCD).
After the hearing, the administrative judge issued an initial decision
affirming the agency’s action. IAF, Tab 35, Initial Decision (ID) at 1-2.
Therein, the administrative judge found that the agency terminated the appellant,
in part, for pre-appointment reasons. ID at 8-9. Thus, the administrative judge
found that she was entitled to certain procedural rights which the agency did not
provide. ID at 9. He found, however, that the agency’s error was not harmful.
ID at 9-13. The administrative judge was not persuaded by the appellant’s
attempts to explain that she correctly answered question 12 on the OF-306.
ID at 10-12. He credited the terminating official’s testimony that she would have
removed the appellant even had she been granted an opportunity to respond to the
termination. ID at 11-12. Accordingly, the administrative judge found that the
appellant failed to meet her burden of proving, by preponderant evidence, that the
agency’s error caused it to reach a different conclusion than it would have in the
absence of any error. ID at 12.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, and the appellant has replied to its
response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant was a probationary
employee who was terminated, in part, based on pre-appointment reasons.
ID at 7-9. He further found that the agency failed to provide the requisite
procedural rights set forth at 5 C.F.R. § 315.805 in terminating the appellant.4
ID at 7. The parties do not dispute these findings on review, and we see no
reason to disturb them.
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 of 5 C.F.R. § 315.805. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 7 (2016). In such appeals,
the merits of the agency’s termination decision are not before the Board. Id.
Rather, the only issue is whether the agency’s failure to follow the procedures
prescribed in section 315.805 was harmful error. Id. These procedural rights
include advance notice of the termination, an opportunity to respond, and
consideration of the response. Id., ¶ 13; 5 C.F.R. § 315.805. If there was harmful
error, then the agency’s action must be set aside. LeMaster, 123 M.S.P.R. 453,
¶ 7.
It is well established that harmful error cannot be presumed; an agency
error is harmful only when the record shows that it was likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. Id., ¶ 14. The burden is on the appellant to show
that the procedural error was harmful, i.e., that it caused substantial harm or
prejudice to her rights. Id.; 5 C.F.R. § 1201.4(r).
The administrative judge correctly found that the appellant failed to show that the
agency’s procedural error was harmful.
The administrative judge found, based on testimony from the deciding
official, that the agency would have terminated the appellant given her failure to
disclose her prior termination, even had she been afforded the requisite notice and
response procedural protections. ID at 6, 12. The appellant on review repeats her
argument that, based on the CUIAB findings, she was correct in answering “no”
on question 12 of the OF-306. PFR File, Tab 1 at 8-10. She additionally repeats
her argument that her different answer on the SF-85P was a result of “changed5
facts and . . . her changed state of mind concerning her relationship with” her
prior employer. Id. at 10. The appellant asserts that, if she had been given an
opportunity to make these arguments before the agency, it would have reached a
different result. Id. at 9.
The appellant contends that the CUIAB decision found that she was eligible
for unemployment benefits because the reasoning given for her prior termination
was erroneous, and therefore she was not terminated for misconduct. Id. at 4-5,
8-9. Thus, as an at will employee, she was discharged for “no reason.” Id. at 4.
Because she was discharged for no reason, she argues she correctly answered
“no” to question 12 on the OF-306, which asked whether she had been fired “for
any reason.” Id. at 5. We find this argument unpersuasive.
The essence of the appellant’s argument is that the reasoning behind her
prior termination was flawed, and that her prior employer did not have a good
reason to terminate her. This fails to reconcile the fact that she was nonetheless
terminated but failed to disclose it. Indeed, she seemingly agreed that she had
been fired when interviewed by the HR Specialist, and suggested that her answer
to question 12 in the negative was a mistake. IAF, Tab 5 at 33-34;
HCD2 at 21:45 (testimony of the HR Specialist). The agency’s termination notice
stemmed not from the fact that she was previously terminated, but from the fact
that she failed to disclose such termination. IAF, Tab 5 at 30-31. Indeed, the
deciding official testified that prior terminations are not necessarily held against
employees, but the problem is when such actions are not disclosed.
HCD4 at 46:05 (testimony of the deciding official). The failure to disclose, she
explained, goes to the suitability of the person for employment and maintaining
the integrity of public trust positions. Id. at 46:40 (testimony of the deciding
official). The deciding official testified that she decided to terminate the
appellant because she had at least two opportunities to disclose her termination,
but failed to do so. Id. at 47:15 (testimony of the deciding official). She testified
that, had the appellant disclosed her termination on the OF-306, it is “not likely”6
that she would have terminated her. Id. at 48:40 (testimony of the deciding
official).
Moreover, as the administrative judge noted, the appellant failed to
demonstrate that the CUIAB has the authority to overturn her prior termination.
ID at 10. Rather, the CUIAB could, and did, determine that the appellant was not
terminated for misconduct. IAF, Tab 22 at 23-25. This decision, however, has no
bearing on whether the appellant was in fact terminated.2 Accordingly, she has
failed to demonstrate that her answer to question 12 was correct and has failed to
provide a reason for her failure to disclose her prior termination such that the
agency likely would have reached a different conclusion had the appellant had an
opportunity to respond to the termination.
Her arguments regarding her answer on the SF-85P are similarly
unpersuasive. She argues, in essence, that changed circumstances and the passage
of time led to her altered answer on that form. PFR File, Tab 1 at 10.
However, her answer on the SF-85P has no bearing on our decision here and
rather only served as the catalyst that prompted the agency’s investigation into
her prior termination. IAF, Tab 5 at 33; HCD2 at 16:35 (testimony of the HR
Specialist). Regardless of whether the circumstances changed or the SF-85P
question was different than question 12 on the OF-306, this argument does not
provide a rationale for her failure to disclose her prior termination when she
certified and recertified her OF-306. Accordingly, we agree with the
administrative judge that the appellant has failed to prove by preponderant
evidence that the agency’s error in failing to provide her with the procedural
protections of 5 C.F.R. § 315.805 likely caused it to reach a conclusion different
2 Indeed, contrary to the appellant’s assertion, the CUIAB decision found that the
appellant “was dismissed from employment.” IAF, Tab 22 at 23-25. Although the
CUIAB found that the appellant was not dismissed for misconduct, and thus was not
disqualified from unemployment benefits, it nonetheless noted that she was in fact
dismissed. Id. 7
from the one it would have reached in the absence or cure of the error.
See LeMaster, 123 M.S.P.R. 453, ¶ 14; 5 C.F.R. § 1201.4(r).
The appellant has otherwise failed to demonstrate that the administrative judge
erred in reaching his decision below.
The appellant asserts on review that the administrative judge erred in
failing to take official notice of the CUIAB decision. PFR File, Tab 1 at 2-4.
The appellant filed a motion below requesting that the administrative judge take
official notice of the CUIAB decision and a California state law decision.
IAF, Tab 22 at 16, Tab 29 at 4. The administrative judge denied this request, but
noted that the appellant could raise the matters as additional arguments at the
hearing. IAF, Tab 26 at 4. Under 5 C.F.R. § 1201.64, an administrative judge
may take official notice of certain facts without requiring evidence to be
introduced establishing those facts. The administrative judge, on his own motion
or on the motion of a party, may take official notice of matters of common
knowledge or matters that can be verified. 5 C.F.R. § 1201.64. The appellant
was allowed to enter the CUIAB decision into the record and present evidence
and argument regarding these issues, and indeed, the administrative judge
repeatedly referenced the decision of the CUIAB in his initial decision.
IAF, Tab 22 at 3, 13, 16, 23-25; ID at 2-3, 8, 10-11. Accordingly, we find that
the appellant has failed to explain how the administrative judge erred, or how she
was prejudiced by the administrative judge’s failure to take official notice under
5 C.F.R. § 1201.64. See Panter v. Department of the Air Force , 22 M.S.P.R. 281,
282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
The appellant further argues that the administrative judge erred in failing to
apply the doctrine of collateral estoppel to her CUIAB decision. PFR File, Tab 1
at 2-4. The administrative judge did not address this issue, even though the
appellant raised it below. IAF, Tab 22 at 14-16. The Board has held that
decisions by state unemployment tribunals are not binding on the Board and thus8
are not given collateral estoppel effect. Herring v. U.S. Postal Service ,
40 M.S.P.R. 342, 346-47 (1989). In so holding, the Board noted that such
decisions constitute record evidence worthy of consideration. Id. As discussed
above, the administrative judge repeatedly referenced and considered the CUIAB
decision. ID at 2-3, 8, 10-11. Accordingly, the administrative judge did not err
in failing to apply collateral estoppel to the CUIAB decision.
The appellant also asserts that the administrative judge improperly
precluded her from presenting a defense based on a violation of her constitutional
due process rights. PFR File, Tab 1 at 5-7. The administrative judge noted that,
as a probationary employee, she is not entitled to pre -termination due process
grounded on the Constitution. IAF, Tab 26 at 3; ID at 9. Rather, the
administrative judge held that her pre-termination procedural rights were based
on 5 C.F.R. § 315.805. ID at 9. The appellant continues to argue on review that,
as a probationary employee, she does not lose her constitutional due process
rights. Id. at 6. Her argument is incorrect. As a probationary employee, she was
not a public employee who could only be removed for cause, and thus, her right
to pre-termination “process” is not based on the Constitution. See Pope v.
Department of the Navy , 62 M.S.P.R. 476, 479 (1994). Thus, although she was
entitled to the procedural rights set forth in 5 C.F.R. § 315.805, she did not have a
constitutionally protected property interest in her employment because she was
still serving her probationary period. See Stephen v. Department of the Air Force ,
47 M.S.P.R. 672, 680-81 (1991). Accordingly, she is not entitled to
constitutional due process rights.3 We additionally note that the administrative
judge, in his order and summary of prehearing conference, merely identified the
relevant case law for the principles set forth above. IAF, Tab 26 at 3-4. He did
3 To the extent that the appellant has alleged that the agency’s failure to provide her
with the procedural protections of 5 C.F.R. § 315.805 violated the merit systems
principles, PFR File, Tab 1 at 13-14; IAF, Tab 22 at 9-10, the merit system principles
are intended to furnish guidance to Federal agencies and are not self-executing.
See Corbett v. Department of Health and Human Services , 7 M.S.P.R. 431, 434 (1981 ). 9
not, as argued by the appellant, order that she could not present such a defense.
PFR File, Tab 1 at 5.
The appellant additionally argues that the administrative judge erred in
discouraging attempts to elicit testimony at the hearing regarding her good
performance and not addressing her positive performance in reaching his
decision. Id. at 10-12. She further argues that reasonable people “do not
terminate good performing employees” who answered a question incorrectly.4
Id. at 12. The administrative judge did not specifically address the appellant’s
performance, but some evidence regarding her performance was included in the
record below. IAF, Tab 22 at 67-77. As noted by the agency, the appellant’s
termination was not for poor performance. PFR File, Tab 3 at 14; IAF, Tab 5
at 30-32. Thus, her good performance has no bearing on whether she provided
inaccurate information when she answered “no” to question 12 of the OF-306.
The appellant has not, therefore, met her burden of showing that the agency’s
failure to afford her the procedural rights set forth at 5 C.F.R. § 315.805,
including the opportunity to submit evidence of her good performance, likely
caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of its error.
The appellant also challenges the credibility determinations of the
administrative judge, asserting that the testimony of the deciding official was
self-serving and devoid of any indication that she was familiar with the record as
a whole as it existed at the time of the hearing. PFR File, Tab 1 at 12.
The appellant contends that the administrative judge should have held this
testimony from the deciding official to the preponderant evidence standard, and
that the deciding official testified “in isolation from other witnesses,” including
the testimony of the appellant. Id.
4 The appellant goes on to argue that she “made a mistake with unclear language” when
she answered question 12 on the OF-306. PFR File, Tab 1 at 12. This is contrary to her
prior argument on review that her answer of “no” on question 12 was correct.
Id. at 8-10.10
The administrative judge credited the deciding official’s testimony that she
would not have reached a different decision had the appellant had an opportunity
to respond because the appellant’s failure to disclose her prior termination was an
integrity issue for a position of public trust. ID at 11-12; see Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367, 1373 (Fed. Cir. 2016)
(finding that the Board must defer to an administrative judge’s demeanor-based
credibility determinations “[e]ven if demeanor is not explicitly discussed”);
see also Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009)
(noting that, when an administrative judge has heard live testimony, his
credibility determinations must be deemed to be at least implicitly based upon
witness demeanor). The Board may overturn such a credibility determination
only when it has “sufficiently sound” reasons for doing so, such as when the
administrative judge’s findings are incomplete, inconsistent with the weight of
the evidence, and do not reflect the record as a whole. Rapp v. Office of
Personnel Management , 108 M.S.P.R. 674, ¶ 13 (2008).
The Board will not discredit a witness’s testimony solely because it can be
characterized as self-serving. Elder v. Department of the Air Force ,
124 M.S.P.R. 12, ¶ 25 (2016). We further note that the appellant had an
opportunity at the hearing to question the deciding official as to whether she was
familiar with the record. HCD4 at 49:40 (cross examination testimony of the
deciding official). The absence of her testimony on the subject does not indicate
that she was unfamiliar with the record. Moreover, it is the appellant’s burden of
proof here, not the agency’s burden, to prove the truthfulness of its witnesses.
See LeMaster, 123 M.S.P.R. 453, ¶ 7; 5 C.F.R. § 1201.4(r). Finally,
administrative judges have wide discretion to control the proceedings before
them. Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353, ¶ 21 (2015).
This includes the authority to regulate the course of the hearing. 5 C.F.R.
§ 1201.41(b)(6). The appellant’s apparent suggestion that the administrative
judge should not have sequestered the deciding official while other witnesses11
were testifying deviates from standard Board practice and does not show an abuse
of discretion by the administrative judge. See MSPB Judge’s Handbook, ch. 10,
§12(f); see also Ryan v. Department of the Air Force , 117 M.S.P.R. 362, ¶ 5
(2012) (applying an abuse of discretion standard to an administrative judge’s
hearing-related rulings). We thus find that the appellant has failed to identify
sufficiently sound reasons for disturbing the administrative judge’s credibility
findings.
Accordingly, the appellant has not shown that the agency’s failure to
follow the procedures prescribed in 5 C.F.R. § 315.805 was harmful error.
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.12
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you13
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 14
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Flores_MarisolSF-315H-19-0521-I-1__Final_Order.pdf | 2024-07-15 | MARISOL FLORES v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-315H-19-0521-I-1, July 15, 2024 | SF-315H-19-0521-I-1 | NP |
966 | https://www.mspb.gov/decisions/nonprecedential/Clark_AquetaSF-0752-18-0530-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AQUETA CLARK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0752-18-0530-I-2
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Katherine Brewer , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant intended to deceive the agency for her own private material
gain, we AFFIRM the initial decision.
BACKGROUND
The essential undisputed facts as set forth by the administrative judge are
as follows. The appellant was formerly employed by the agency as a Special
Agent/Investigator for the National Background Investigations Bureau in Long
Beach, California. Clark v. Office of Personnel Management , MSPB Docket
No. SF-0752-18-0530-I-2, Refiled Appeal File (RAF), Tab 22, Initial Decision
(ID) at 3. The appellant worked from home under a telework agreement and was
“expected to work independently with little daily supervision.” ID at 3-4. Her
job duties included conducting background investigations in the field, obtaining
records, and conducting interviews. ID at 4. Upon completion of a background
investigation, she was responsible for compiling and submitting an official report
of investigation (ROI). Id.
In or around February 2016, the appellant’s former supervisor became
concerned about the appellant’s productivity and began requiring her to submit
daily work reports accounting for the work that she performed each day. Id. In
August 2016, the appellant’s new first-level supervisor reviewed the appellant’s2
productivity metrics and became concerned that misconduct might be involved.
ID at 5. At management’s request, the agency’s Integrity, Assurance,
Compliance, and Inspections (IA) division opened an investigation into
discrepancies between the appellant’s claimed hours worked and claimed work
produced. Id. After obtaining an affidavit from the appellant and reviewing
various evidence, including the appellant’s ROIs, time reports, daily work
reports, Personnel Investigations Processing System activity logs, field work
system (FWS) activity logs,2 and Government-owned vehicle fuel purchase
reports, the IA issued a report of investigation concluding that the appellant had
not been working the hours that she claimed in her time reports. ID at 5, 7-9;
RAF, Tab 18. Effective May 4, 2018, the agency removed her based on two
charges of failure to work reported hours (13 specifications) and inappropriate
behavior (two specifications). ID at 5.
The appellant filed a Board appeal challenging her removal and raised an
affirmative defense of harmful procedural error. Clark v. Office of Personnel
Management, MSPB Docket No. SF-0752-18-0530-I-1, Initial Appeal File (IAF),
Tab 1.3 After the appellant withdrew her request for a hearing, RAF, Tab 5, the
administrative judge issued an initial decision, based on the written record,
sustaining the appellant’s removal. The administrative judge sustained the failure
to work reported hours charge, although she found that the agency failed to prove
specifications 2, 7, and 8. ID at 6-17. The administrative judge also found that
the agency failed to prove its charge of inappropriate behavior because it failed to
prove specification 2, the only specification before the Board because the
agency’s deciding official did not sustain specification 1. ID at 17-20. The
2 The FWS is a system that investigators utilize as part of their daily duties to, among
other things, input the findings of their investigation and transmit an ROI. Clark v.
Office of Personnel Management , MSPB Docket No. SF-0752-18-0530-I-1, Initial
Appeal File, Tab 8 at 85.
3 The appeal was dismissed without prejudice and automatically refiled on
November 13, 2018. IAF, Tab 15.3
administrative judge further found that the appellant failed to prove her
affirmative defense of harmful procedural error because the agency was not
required to place her on a performance improvement plan pursuant to 5 U.S.C.
chapter 43 when it elected to remove her pursuant to 5 U.S.C. chapter 75. ID
at 21-22. Finally, the administrative judge found that there was a nexus between
the penalty and the efficiency of the service and the penalty of removal was
reasonable. ID at 20, 22-25.
The appellant has filed a petition for review, which the agency has
opposed. Petition for Review (PFR) File, Tabs 1, 7.4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charge of
failure to work reported hours.
In this charge, the agency alleged that on various dates from August 4,
2015, to June 2, 2016, the appellant reported that she had worked a full work -day,
but a review of her ROIs reflected that she did not report any leads, meaning that
she did not conduct any interviews or obtain any records, and did not access the
FWS to type any ROIs. IAF, Tab 8 at 10-15, 83-94. According to the agency,
given the duties and responsibilities of an investigator, the appellant could not
have worked a full day without performing any of those tasks. Id. Therefore, it
charged her with failing to work the number of hours claimed on her time sheets.
Without expressly so stating, the administrative judge evidently equated
the unusually worded charge with its more conventional formulation, that is,
falsification of time and attendance records, finding that it required the agency to
prove the following three elements: (1) the appellant reported to the agency that
she worked specified hours; (2) the appellant failed to work those hours; and
4 The agency’s opposition to the appellant’s petition is titled “Response to Petitioner’s
Petition for Review and Cross Petition;” however, “Cross Petition” appears to be a
typographical error to the extent the agency’s pleading does not identify any error in the
initial decision. PFR File, Tab 7.4
(3) the appellant’s misreporting of those hours was intentional. ID at 6. Neither
party contests this charge construction on review.5
The administrative judge found that the agency proved the appellant
reported working a specified number of hours, generally 8 or more hours, on each
of the relevant dates, except where her time report reflected that she used sick
leave or annual leave. ID at 7-9. She further found that the agency proved the
appellant failed to work the hours she reported. ID at 10-12. In particular, the
administrative judge found it undisputed that, on the relevant dates, the appellant
did not conduct interviews, obtain records, or access the FWS to type or transmit
ROIs. ID at 10. She further found that the appellant failed to adequately explain
her claim that she was working diligently on the relevant dates. ID at 11. She
also rejected the appellant’s various explanations for the discrepancies between
the appellant’s time records, ROIs, and daily work reports, i.e., that she had
difficulty tracking down leads, had problems with the FWS, and/or that FWS
records were improperly used to assess the work she performed. ID at 13-16.
Finally, given the absence of any plausible explanation for these discrepancies,
the administrative judge inferred that the appellant intentionally misreported the
number of hours that she worked on the dates in question. ID at 15-17.
On review, the appellant argues that the administrative judge erred in
sustaining this charge for several reasons. First, she contends that the charge is
properly construed as a charge of falsification and that the agency failed to prove
that she knowingly provided incorrect information with the intent of defrauding,
deceiving, or misleading the agency as it relates to her reported work hours.6
5 The agency argued below that its charge should not be construed as requiring proof of
intent. RAF, Tab 7, Tab 14 at 1-2. T he administrative judge disagreed but found that
the agency had proven intent. ID at 6. Thus, the agency proved the charge under either
construction. The agency raises no argument regarding the intent requirement on
review, and therefore, we need not address it here.
6 The appellant also argues that the administrative judge erred in construing the
agency’s charge as alleging that the appellant either did not work at all or completed
only some of the work claimed on the relevant dates. PFR File, Tab 1 at 18. Such an
argument is unavailing because that is precisely what the agency charged the appellant5
PFR File, Tab 1 at 19-21. However, as noted above, the administrative judge did,
in fact, require the agency to prove the appellant intended to falsify agency
records. IAF, Tab 13 at 4; ID at 6. Moreover, we find unpersuasive the
appellant’s argument that the agency failed to present evidence of intent or that it
only presented tangential circumstantial evidence. PFR File, Tab 1 at 21. To
meet its burden of proof, the agency did not need to produce direct evidence of
intent. See Rodriguez v. Department of Homeland Security , 108 M.S.P.R. 525,
¶ 9 (2008). Because there is rarely direct evidence of intent, the Board must rely
on circumstantial evidence. Id. Accordingly, we discern no error in the
administrative judge’s finding that the agency proved intent via circumstantial
evidence. See Nelson v. U.S. Postal Service , 79 M.S.P.R. 314, ¶ 7 (1998) (stating
that the lack of any credible explanation for the misrepresentation can constitute
circumstantial evidence of an intent to deceive).
Nonetheless, because, as previously noted, the administrative judge
essentially characterized the agency’s charge as falsification of time and
attendance records, we modify the initial decision to address the additional
element of such a charge, that is, whether the appellant intended to defraud the
agency for her own private material gain. See Boo v. Department of Homeland
Security, 122 M.S.P.R. 100, ¶ 12 (2014) (explaining that proof of the intent
element of a falsification charge requires both a showing that the employee
intended to deceive or mislead the agency and that such intent was for his own
private material gain); see also Bradley v. Veterans Administration , 900 F.2d 233,
237 (1990) (noting that examples of private material gain include, among other
things, compensation). As the administrative judge found the appellant received
with in its proposed removal. RAF, Tab 8 at 89. The appellant also contends that the
administrative judge erred in citing to Pope v. U.S. Postal Service , 114 F.3d 1144, 1147
(Fed. Cir. 1997), regarding the agency’s burden of proof for a charge of failure to work.
PFR File, Tab 1 at 15. Such an argument, however, misconstrues the citation, which
was properly cited for the general proposition that, in an adverse action appeal, an
agency must prove that the charged misconduct occurred, there is a nexus between such
conduct and the efficiency of the service, and that the penalty imposed is reasonable.6
compensation for time during which she did not work, we correspondingly find
the agency established this additional element as well.
Next, the appellant argues that the administrative judge, having improperly
dismissed her argument that she worked on lesser matters on the dates in
question, erred in finding she did not perform the duties of her position on those
dates.7 PFR File, Tab 1 at 17. She also reiterates her contention that her failure
to conduct any leads or to access the FWS on the relevant dates does not render it
implausible that she was, in fact, working. Id. at 17-18. However, as the
administrative judge found, the appellant has failed to offer any details
concerning the work she allegedly performed on the cited dates. ID at 11.
The appellant further reiterates other defenses to the agency’s charge,
including that she was not required to log in to FWS daily and that other factors,
outside of her control, such as difficulty tracking down leads, affected her overall
productivity. PFR File, Tab 1 at 17-18. However, the administrative judge
considered and rejected such arguments, finding that the appellant’s credibility
was seriously undermined by the unreconciled discrepancies between her daily
work reports and her ROIs, concluding that her daily work reports significantly
overstated the leads she actually conducted on the dates in question. ID at 13-16.
The appellant also contends that the administrative judge erred in
considering her calendar entries to determine what work she performed during the
hours she reported to have been working, asserting that she was not required to
fill out and retain a calendar and her calendar was not intended to justify the work
7 The appellant appears to assert that the agency failed to provide certain evidence in
discovery that would have established that she was working on the relevant dates. PFR
File, Tab 1 at 17-18. However, the record does not reflect that she filed a motion to
compel and, thus, she is precluded from raising this discovery issue for the first time on
review. See Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005),
aff’d, 167 F. App’x 217 (Fed. Cir. 2006); see also Sanderson v. Office of Personnel
Management, 72 M.S.P.R. 311, 317 (1996) (finding that the appellant was not entitled
to obtain documents on review because he failed to avail himself of the Board’s
discovery procedures below in attempting to obtain them, including filing a motion to
compel), aff’d, 129 F.3d 134 (Fed. Cir. 1997) (Table).7
that she performed. PFR File, Tab 1 at 14-15. However, the administrative judge
specifically considered the appellant’s calendar entries in evaluating her general
claim that she was working on other matters. ID at 11. Indeed, the appellant
herself states that she submitted them to the agency in order to “supplement her
testimonial evidence that she worked on the dates at issue.” Id. at 15. Moreover,
in finding the appellant failed to work the hours she reported working, the
administrative judge noted she did not dispute that, on the relevant dates, she
conducted no interviews, obtained no records, and never accessed the FWS, or
uploaded ROIs. ID at 10. Accordingly, we discern no error in the administrative
judge’s analysis of the relevant evidence. 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); Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The appellant also contends that her appeal is distinguishable from other cases in
which the Board has found that an appellant failed to work her reported hours,
such as Delorito v. Department of the Navy , MSPB Docket No. DC-0752-13-
0517-I-1, and Barber v. U.S. Postal Service , MSPB Docket No. CH-0752-10-
0277-I-1. PFR File, Tab 1 at 16-17. However, such nonprecedential Board
orders are not binding authority and have no precedential authority. 5 C.F.R.
§ 1201.117(c)(2). Furthermore, these cases are not analogous to the present
appeal, as Barber involved a removal based on a violation of a last chance
agreement and Delorito involved an involuntary resignation appeal.
Although the appellant disputes the administrative judge’s fact findings and
credibility determinations as to these various claims, PFR File, Tab 1 at 12-14,
we find she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility, and therefore see no reason to
disturb her conclusions. Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R.
at 359. We also find that the administrative judge properly adapted the principles8
for resolving credibility issues to this case where no testimony occurred. See
Donato v. Department of Defense , 34 M.S.P.R. 385, 389 (1987) (stating that,
when, as here, no hearing was held and the administrative judge’s findings were
based solely on the written record, the Board will give those findings only the
weight warranted by the record and the strength of his conclusions).
The administrative judge properly found that the penalty of removal was
reasonable.
When an agency proves fewer than all of its charges, the Board may
mitigate the agency’s selected penalty to the maximum reasonable penalty, so
long as the agency has not indicated that it desires a lesser penalty to be imposed
on fewer charges. Lachance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999).
Alternatively, the Board may impose the penalty selected by the agency if, after
balancing the mitigating and aggravating factors, it determines that the agency
has justified its penalty selection as the maximum reasonable penalty. Gray v.
U.S. Postal Service , 97 M.S.P.R. 617, ¶ 11 (2004), aff’s per curiam ,
No. 2005-3074, 2005 WL 1368093 (Fed. Cir. June 9, 2005). However, the Board
may not disconnect its penalty determination from the agency’s managerial will
and primary discretion in disciplining employees. Lachance, 178 F.3d at 1258.
The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
employee’s past disciplinary record, the supervisor’s confidence in the
employee’s ability to perform his assigned duties, the consistency of the penalty
with the agency’s table of penalties, and the consistency of the penalty with those
imposed on other employees for the same or similar offenses. Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). The Board places
primary importance upon the nature and seriousness of the offense and its relation
to the appellant’s duties, position, and responsibilities. See, e.g., Downey v.
Department of Veterans Affairs , 119 M.S.P.R. 302, ¶ 9 (2013).9
Here, we find that the administrative judge properly weighed the Douglas
factors, including the nature and seriousness of the offense, the fact that the
misconduct was extensive and repeated, the public nature of the appellant’s
position, and the appellant’s supervisor’s loss of trust and confidence in the
appellant’s ability to perform her assigned duties, and concluded that the
discipline was warranted for the sustained misconduct and that the agency’s
penalty was reasonable. ID at 22-25. Based on our review of the record, we
discern no error in the administrative judge’s conclusions. See, e.g., Rohn v.
Department of the Army , 30 M.S.P.R. 157, 158-59 (1986) (sustaining the removal
of an employee who submitted false time cards for six pay periods). The
appellant’s arguments on review concerning the Douglas factors constitute mere
disagreement with the administrative judge’s findings, PFR File, Tab 1 at 22-27,
and are insufficient to disturb the initial decision, see Yang v. U.S. Postal Service ,
115 M.S.P.R. 112, ¶ 12 (2010); see also Broughton , 33 M.S.P.R. at 359. Finally,
although the appellant argues that other similarly situated employees were not
removed for similar offenses, IAF, Tab 1 at 18; PFR File, Tab 1 at 25, she has not
identified any evidence that would allow the Board to make a finding on the
issue, see, e.g., Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 27
(2016). Accordingly, we discern no reason to disturb the administrative judge’s
finding that the penalty of removal was reasonable.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.9 The court of appeals must receive your
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of13
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.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | Clark_AquetaSF-0752-18-0530-I-2__Final_Order.pdf | 2024-07-15 | AQUETA CLARK v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0752-18-0530-I-2, July 15, 2024 | SF-0752-18-0530-I-2 | NP |
967 | https://www.mspb.gov/decisions/nonprecedential/Defrank_Daniel_M_AT-1221-22-0154-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL M. DEFRANK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-22-0154-W-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel M. Defrank , Orlando, Florida, pro se.
Luis E. Ortiz-Cruz , Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) 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.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
2 In his initial appeal and again on review, the appellant states that he was “forced to
[retire].” Typically, a retirement is a voluntary action over which the Board lacks
jurisdiction. O’Clery v. U.S. Postal Service , 67 M.S.P.R. 300, 302 (1995), aff’d per
curiam, 95 F.3d 1166 (Fed. Cir. 1996) (Table); 5 C.F.R. § 752.401(b)(9). However, the
Board has recognized that employee-initiated actions that appear to be voluntary on
their face are not always so. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7
(2013). The Board may have jurisdiction over such actions as “constructive” adverse
actions. If the appellant wishes to file a separate appeal challenging his alleged
constructive removal, he may do so. If the appellant files such an appeal, he will bear
the burden of establishing timeliness and jurisdiction, including a showing that he is an
employee with adverse action appeal rights under either 38 U.S.C. § 714 or 5 U.S.C.
chapter 75.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5
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 | Defrank_Daniel_M_AT-1221-22-0154-W-1__Final_Order.pdf | 2024-07-15 | DANIEL M. DEFRANK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-22-0154-W-1, July 15, 2024 | AT-1221-22-0154-W-1 | NP |
968 | https://www.mspb.gov/decisions/nonprecedential/Lewis_MelissaCH-315H-20-0383-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA LEWIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-315H-20-0383-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Melissa Lewis , Chicago, Illinois, pro se.
Stephanie Macht , Esquire, Westchester, 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 for lack of jurisdiction the appeal of her probationary termination.
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.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
2 On review, the appellant apologizes for the conduct underlying her termination and
states that she is a good employee. Petition for Review File, Tab 1 at 4. She does not,
however, address the jurisdictional basis for the dismissal of her appeal. In addition,
she has submitted what purport to be three emails from former coworkers and one from
a friend attesting to her good character. Id. at 4-5. This evidence is neither new nor
material. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980) (finding that the
Board generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed despite
the party's due diligence); Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980) (finding that the Board generally will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision) .
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 | Lewis_MelissaCH-315H-20-0383-I-1__Final_Order.pdf | 2024-07-15 | MELISSA LEWIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-315H-20-0383-I-1, July 15, 2024 | CH-315H-20-0383-I-1 | NP |
969 | https://www.mspb.gov/decisions/nonprecedential/DeFlora_MaukaliSF-0752-20-0001-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAUKALI DEFLORA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0001-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Saku E. Ethir , Esquire, Riverside, California, for the appellant.
Veronica Hale and Robert Aghassi , Barstow, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE the administrative judge’s analysis of whether the agency proved that it
would have taken the same removal action in the absence of the appellant’s
alleged disclosure, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The following facts, as further described throughout the parties’
submissions and the administrative judge’s initial decision, are not disputed. The
appellant held the position of Police Officer for the agency’s Marine Corps
Logistics Base in Barstow, California. Initial Appeal File (IAF), Tab 28, Initial
Decision (ID) at 2. The agency proposed his removal, based on the following
charges, each concerning a separate incident on a separate date: (1) Off-Duty
Misconduct; (2) Refusal to Cooperate in an Official Investigation; (3) Failing to
Submit to Base Security Check; and (4) Conduct Unbecoming. ID at 2-5; IAF,
Tab 5 at 23-24. After the appellant responded, the deciding official sustained
each charge and removed the appellant. ID at 5; IAF, Tab 5 at 10-11.
The appellant filed the instant appeal, challenging his removal and raising
an affirmative defense of whistleblower reprisal. IAF, Tab 1 at 6-10. The
administrative judge developed the record and held a hearing over 3 days, before
sustaining the removal action. IAF, Tab 15, Hearing Compact Disc (HCD1),
Tab 17, Hearing Compact Disc (HCD2), Tab 25, Hearing Compact Disc (HCD3);2
ID at 44. She found that the agency proved its charges, ID at 7-31, nexus, ID
at 31-32, and the reasonableness of its penalty, ID at 32-36, while the appellant
failed to prove his whistleblower reprisal claim, ID at 36-43.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that the administrative judge improperly denied some
witnesses, exhibited bias, and erred in weighing the evidence to find that the
agency proved each charge. Id. at 8-26. The appellant does not present any
arguments concerning the administrative judge’s denial of his affirmative
defense, or her determinations regarding nexus and the reasonableness of the
agency’s penalty. The agency has filed a response. PFR File, Tab 3.
The appellant has not shown that the administrative judge abused her discretion in
denying witnesses.
In a prehearing submission, the appellant requested a number of witnesses,
including brief descriptions of what testimony they might provide. IAF, Tab 10
at 7-11. To illustrate, for quite a few of these proposed witnesses, he merely
indicated that they would “[t]estify to the character of [appellant].” Id. at 8-10.
The administrative judge approved 15 of the appellant’s witnesses, but denied
another 21. IAF, Tab 11 at 4. Although the appellant requested reconsideration,
and provided additional information about a few, IAF, Tab 12 at 4-5, the
administrative judge did not reach a different conclusion about any of the
requested witnesses, HCD1 (opening remarks).
On review, the appellant asserts that the administrative judge should not
have denied any of his witnesses. PFR File, Tab 1 at 8-9. In making this
assertion, he does not present particularized arguments about any individual
witness. Instead, the appellant summarily asserts that the denied witnesses would
have provided testimony regarding matters such as the appropriateness of the
discipline and the appellant’s credibility. Id. at 9.
An administrative judge has wide discretion under 5 C.F.R. § 1201.41(b)
(8), (10) to exclude witnesses when it has not been shown that their testimony3
would be relevant, material, and nonrepetitious. Franco v. U.S. Postal Service ,
27 M.S.P.R. 322, 325 (1985). We have reviewed the appellant’s submissions
from below regarding proposed witnesses, along with the administrative judge’s
rulings about the same. However, we find no reason to conclude that the
administrative judge abused her discretion. The appellant’s conclusory argument
on review does not persuade us otherwise.
The appellant has not shown that the administrative judge exhibited bias or
otherwise erred in the way that she presided over the hearing.
On review, the appellant’s counsel notes that the administrative judge
adjudicated the instant appeal while she—the appellant’s counsel—had another
petition pending with the Board, in which she alleged that the same
administrative judge exhibited bias in an unrelated case. PFR File, Tab 1 at 9-10
(referencing Lybbert v. Department of the Navy , MSPB Docket No. SF-0752-19-
0498-I-1). The appellant’s counsel seems to suggest that the administrative judge
should have recused herself from the instant appeal, due to that pending bias
argument in an unrelated appeal. Id. However, the appellant and his counsel
have not directed us to anything that would suggest they properly raised this
matter below and preserved it for review. See 5 C.F.R. § 1201.42(b) (providing
that a party may request that a judge withdraw for bias, but must do so promptly
and must provide the reason for the request in an affidavit or sworn statement),
(c) (providing that if the judge denies a party’s motion to recuse, the party must
request interlocutory appeal or the matter will be waived).
The appellant also argues that the administrative judge exhibited bias in the
instant appeal. PFR File, Tab 1 at 10-13. According to the appellant, the
administrative judge repeatedly interrupted the cross-examination of witnesses
with a condescending and adversarial tone, she improperly prevented the
appellant from pursuing some lines of questioning, and she was particularly
aggressive when questioning the appellant’s witnesses. Id. Although the
appellant indicates that this is reflected in the record, he has not directed us to4
any particular point within the 3-day hearing. See IAF, Tabs 16, 18, 26; HCD1;
HCD2; HCD3.
In furtherance of his claim of bias in this appeal, the appellant argues that
numerous individuals connected to the hearing—either because they were
testifying witnesses or because they were otherwise able to hear the proceedings
—all expressed shock at the administrative judge’s conduct. PFR File, Tab 1
at 13-16. Although he identifies these individuals by name, the appellant did not
present sworn statements from these individuals or any other supportive evidence.
Unlike his other assertions regarding bias, which are not particularly
specific, the appellant described one event in detail regarding the administrative
judge’s alleged impropriety during the hearing. Id. at 16-17. In short, he alleges
that the administrative judge berated the appellant’s counsel for adjusting the
volume to the video teleconference equipment as she tried to eliminate feedback.
Id.
As an initial matter, we note that the appellant’s arguments of bias are
largely lacking in pertinent details. See 5 C.F.R. § 1201.114(b) (a petition for
review must state a party’s objections to the initial decision, including all of the
party’s legal and factual arguments, and must be supported by specific references
to the record). Although we have reviewed portions of the hearing, as needed to
address some of the appellant’s other arguments, we will not pore through the
entirety of a 3-day hearing in search of objectionable behavior based on generic
complaints of bias.
We next note that, when a party makes a claim of bias or prejudice against
an administrative judge, he must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions evince “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Bieber v. Department of5
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)).
With these standards in mind, we discern no reason to conclude that the
appellant has presented any basis for new adjudication. Although it is evident
that the appellant disagrees with the manner in which the administrative judge
presided over this case, he has not shown that she abused her discretion or
exhibited conduct warranting new adjudication. See, e.g., Tisdell v. Department
of the Air Force , 94 M.S.P.R. 44, ¶ 13 (2003) (recognizing that an administrative
judge has wide discretion to control the proceedings).
The agency proved each of its charges.
Again, the agency based its removal action on four charges. IAF, Tab 5
at 23-24. Based in large part on the credibility of witness testimony, the
administrative judge found that the agency proved each. ID at 7-31. On review,
the appellant challenges those findings. PFR File, Tab 1 at 18-26.
Off-duty misconduct
In its first charge, off-duty misconduct, the agency alleged that the
appellant and two individuals from another car got into an altercation while
driving on the interstate. IAF, Tab 5 at 23. This resulted in both cars pulling
over to the shoulder, at which point the appellant exited his vehicle with his
badge displayed and “brandished [his] personal firearm” on the two individuals
from the other car. Id.
To find that the agency proved this charge, the administrative judge
considered evidence that included the police report from a responding Highway
Patrol Officer, who interviewed the appellant on the date of the incident, as well
as the appellant’s subsequent explanations, provided in connection with this
removal action. ID at 7-14 (referencing, e.g., IAF, Tab 5 at 20, 31-38). In short,
the administrative judge found that the only dispute was whether the appellant
“brandished” his weapon, with the police report indicating that he did, whereas6
the appellant’s testimony indicated that he did not. ID at 8-9. She credited the
former, rather than the latter. ID at 8-14. While doing so, the administrative
judge considered, but rejected, the appellant’s various arguments about the
reliability of the Highway Patrol Officer’s report, including arguments about the
officer being biased. ID at 9-11. She also found that the appellant’s explanations
of what occurred morphed over time, with his after-the-fact explanations made in
connection with his removal being both inconsistent and inherently implausible.
ID at 11-13.
On review, the appellant accurately notes that he did testify at the hearing,
but the Highway Patrol Officer did not, and the other individuals involved in the
road rage incident underlying this charge were never located, so their version of
events is not in the record. PFR File, Tab 1 at 18. Because of this, the appellant
essentially argues the administrative judge was precluded from discrediting his
testimony. Id. at 18-22. We are not persuaded.
The administrative judge explained that her credibility analyses would be
guided by Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987), while
the value she assigned to hearsay evidence would be guided by Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 83-87 (1987). ID at 6-7. Particularly
relevant to this charge, some of the factors described in Hillen for purposes of
weighing credibility include any prior inconsistent statements by the witness, the
inherent improbability of the witness’s version of events, and the witness’s
demeanor. Hillen, 35 M.S.P.R. at 458.
As the administrative judge recognized, the appellant’s explanation of what
happened during the road rage incident varied over time. According to the police
report, which was based on the appellant’s description of events, the appellant
admitted that he never saw the other parties to the road rage incident with a
weapon, but he nevertheless drew his firearm because one of those two
individuals had a hand behind their back when everyone pulled to the shoulder of
the interstate and exited their vehicles. IAF, Tab 5 at 36. The Highway Patrol7
Officer surmised that the appellant “acted under his own personal aggression
towards the [other parties], and he did not use sound judgment.” Id. at 38. He
further concluded, based on the appellant’s own statement, that the appellant
violated California’s brandishing law. Id.
Unlike the statement attributed to the appellant in the police report, the
appellant’s written response to the agency’s discipline indicated that the
individual mentioned above “appeared to have a weapon on his hand.” Id. at 20.
Yet, when testifying at the hearing, the appellant indicated that he clearly saw
that this individual had a firearm in hand. ID at 12; HCD2 (testimony of the
appellant).
It is not apparent to us why the agency failed to produce the Highway
Patrol Officer as a witness to testify at the hearing below. See Borninkhof,
5 M.S.P.R. at 87 (recognizing that the availability of a person with firsthand
knowledge to testify at the hearing is one factor regarding the probative value of
hearsay evidence). However, his police report is signed, many details contained
within are consistent with the appellant’s admissions, and the officer was a
disinterested party. IAF, Tab 5 at 31-38; see Borninkhof, 5 M.S.P.R. at 87
(recognizing these as additional factors regarding the probative value of hearsay
evidence).
In any event, even if we assigned limited value to the police report, the
evolution of the appellant’s story remains striking. If the appellant clearly saw
the individual with a firearm, as claimed during his hearing testimony, one would
expect that the written statement he produced in concert with his attorney would
have stated the same. Instead, it includes notably more ambiguous language—
that the individual “appeared” to have a “weapon.” Therefore, we agree with the
administrative judge’s recognition that the appellant’s testimony was inconsistent
with his prior written statement. ID at 13. We also discern no basis for
disturbing the administrative judge’s detailed explanation for why she found
portions of the appellant’s testimony inherently implausible, particularly his8
explanation of what happened in the moments leading up to both vehicles pulling
over to the shoulder of the interstate, which essentially placed all the blame for
the road rage incident on the other party and none of the blame on himself. ID
at 11.
Finally, we note that the administrative judge was in the best position to
observe the appellant’s demeanor. Her credibility findings are, therefore, entitled
to deference. ID at 13-14; see Haebe v. Department of Justice , 288 F.3d 1288,
1300-01 (Fed. Cir. 2002) (recognizing that the Board must give deference to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses testifying at a
hearing, and can overturn such determinations only when it has “sufficiently
sound” reasons for doing so). Accordingly, we find no reason to reach a
conclusion different than the administrative judge regarding the appellant’s
credibility or the off-duty misconduct charge. The agency met its burden of
proving this charge by preponderant evidence.
Refusal to Cooperate in an Official Investigation
The agency’s second charge was “Refusal to Cooperate in an Official
Investigation.” IAF, Tab 5 at 23-24. In short, the accompanying narrative
alleged that the appellant had relayed the story of an altercation between two
other officers to another individual, but then refused multiple directives to
cooperate with the resulting administrative investigation about the same. Id.
While considering this charge, the administrative judge discussed the
testimony of numerous individuals involved, particularly that of the appellant, the
investigator, and the Police Chief. ID at 14-18. She recognized that the appellant
testified that he merely delayed answering questions about the altercation, and did
so with the approval of the investigator. ID at 16-18 (citing HCD2 (testimony of
the appellant); HCD3 (testimony of the appellant)). But she also recognized
testimony to the contrary from the investigator and the Police Chief, who
described the appellant as refusing to cooperate, multiple times, even when9
warned that he could be disciplined. ID at 16-18 (citing HCD1 (testimony of the
investigator); HCD2 (testimony of Police Chief)).
The administrative judge credited the testimony of the investigator and
Police Chief over that of the appellant for a few reasons. ID at 18-21. One of
those reasons was what the administrative judge characterized as the appellant’s
inherent bias, because his version of events was provided in response to his
pending removal. ID at 18. To the extent that she was discounting the
appellant’s testimony merely because it was self-serving, this was improper. See
Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586, ¶ 23 (2009)
(recognizing that, although witness bias is a factor in resolving credibility, the
Board does not discount testimony merely because it is self-serving).
Nevertheless, the administrative judge’s other credibility findings remain valid,
and they support the same conclusion regarding the agency’s version of events
being more credible than the appellant’s. For example, the administrative judge
found that three witnesses—the investigator, the Police Chief, and an individual
with whom the appellant confided—all provided testimony that was both
consistent and supportive of the agency’s allegations, while the appellant alone
provided a different version of events. ID at 17-19 (citing, e.g., HCD1 (testimony
of the Command Sergeant Major)). The administrative judge also found the
appellant’s version of events inherently improbable for several reasons, including
all the other instances of the appellant engaging in loud, confrontational behavior
in the workplace. ID at 19-21.
On review, the appellant essentially reiterates his testimony from below,
asserting that he never refused to cooperate with the investigation, but instead
asked for, and was granted, a delay so he could get others involved, including a
union president and someone from the Naval Criminal Investigative Service. PFR
File, Tab 1 at 23-25. However, this argument is not a sufficiently sound basis for
us to disturb the administrative judge’s findings to the contrary. 10
Failing to Submit to Base Security Check
The agency’s third charge was “Failing to Submit to Base Security Check.”
IAF, Tab 5 at 24. In this charge, the agency alleged that the appellant requested
permission to bypass a random security check at the main gate to the base, and
the responding officer denied him permission, but the appellant nevertheless
drove through the out-bound lane to bypass the security check. Id.
The administrative judge noted that the only substantive dispute regarding
this charge was whether the appellant had permission to drive through the
out-bound lane and avoid the security check. ID at 22. The charge alleged that
the appellant requested permission, but the responding officer waived his finger
back and forth to gesture no. IAF, Tab 5 at 24. The appellant claimed that he
asked to bypass the security check and the responding officer nodded in the
affirmative, and subsequent officers he encountered similarly gave him
permission. ID at 22 (citing HCD2 (testimony of the appellant); HCD3
(testimony of the appellant)).
In finding that the agency met its burden of proving this charge, the
administrative judge considered the appellant’s version of events, but also the
versions provided by numerous officers that were manning the security check on
the date in question. ID at 22-27. The officers’ versions of event are
memorialized in contemporaneous written statements, as well as hearing
testimony. E.g., IAF, Tab 5 at 61-64. Most notably, the first officer the appellant
encountered at the security check explained, in detail, how the appellant
requested permission to bypass the security check, and the officer denied the
request, but he came to realize that the appellant nevertheless circumvented the
security check by driving through the exit lane to the base. E.g., id. at 61.
On review, the appellant argues that the administrative judge ignored
testimony from two officers he encountered after the first officer—testimony that
the appellant characterizes as confirming that he had permission to bypass the
security check. PFR File, Tab 1 at 22-23. However, the administrative judge11
explicitly discussed the contemporaneous written statements and hearing
testimony of those officers. ID at 23-24 (citing, e.g., IAF, Tab 5 at 62, 64). What
she concluded was that the first officer denied the appellant’s request to bypass
the security check and, as the appellant ignored that denial and proceeded, each
subsequent officer the appellant encountered mistakenly assumed that another had
given him permission to use the outbound lane. ID at 24-25. Therefore, the
officers the appellant is referring to did not object as the appellant bypassed the
security check, but they did not overrule the officer that had denied the appellant
permission either. Id. We have reviewed pertinent portions of the hearing
testimony and found the same. E.g., HCD2 (testimony of officers encountered
secondarily). Although the appellant suggests that his interactions with the
subsequent officers amounted to a grant of permission to bypass the security
check, negating the charge, we are not persuaded.
Conduct Unbecoming
The agency’s fourth charge, “Conduct Unbecoming,” involved the
appellant’s personal social media account. IAF, Tab 5 at 24, 72-73, Tab 19 at 4.
According to the agency, the appellant posted a news report of a workplace
shooting, along with comments that included, “I might set that sh-- off
too….B---- better have my money,” and “Stop f------ with people on the job stop
firing people with 5, 10, 20 years on the job this is what happens.” IAF, Tab 5
at 24, 72-73. The agency’s charge further alleged that the profile picture
associated with this posting was the appellant in his military police uniform, and
it occurred shortly after the agency had suspended the appellant for unrelated
conduct. Id. at 24, 92.
The appellant did not deny the existence of the social media post. He did,
however, assert his own innocence by attributing the content to his partner. E.g.,
id. at 19, 21. As the administrative judge analyzed this charge, she considered
the testimony of the appellant and this other individual. ID at 28-31. She noted
that this other individual testified that he was in a relationship with the appellant,12
he regularly accessed the appellant’s social media account, and he mistakenly
used the appellant’s account, rather than his own, to post the objectionable
comments. ID at 29 (citing HCD2 (testimony of appellant’s partner)). She also
noted that the appellant testified that he was altogether unaware of the post until
after the agency raised the matter, because he had not accessed his social media
account in months. ID at 28-30 (citing HCD2 (testimony of the appellant); HCD3
(testimony of the appellant)).
The administrative judge did not find the testimony of the appellant or his
partner credible. ID at 29-30. She found their testimony deeply implausible
under the circumstances. Id. Among other things, she noted that, if the appellant
was careful regarding his social media account, as he claimed, it is unlikely that
he would give someone else access to the account and then not access the account
for months at a time. Id. Additionally, if the appellant’s partner accidentally
posted the objectionable content to the appellant’s account, instead of his own, it
is likely that he would have quickly realized the mistake, given the attached
profile picture, notifications regarding subsequent “likes” or other activity shown
on the post, and the partner’s regular accessing of both his social media account
and the account of the appellant. ID at 29; IAF, Tab 5 at 72-73. Instead, the
administrative judge found that the more likely explanation was that the appellant
made the posting, himself, at a time when the agency had recently suspended him.
ID at 30; IAF, Tab 5 at 92.
On review, the appellant argues that there was no evidence contradicting
his testimony or the testimony of his partner, so it was improper to discredit their
explanation for the posts on the appellant’s social media account. PFR File,
Tab 1 a 26. We disagree. Although the version of events provided by the
appellant and his partner is possible, we agree with the administrative judge’s
well-reasoned explanation for why that version is highly improbable and not
credible. 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 she13
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).
We must vacate the administrative judge’s superfluous findings regarding the
whistleblower reprisal claim.
As we previously mentioned, the administrative judge found that the
appellant’s whistleblower reprisal claim failed. ID at 37-43. Although we agree
with this conclusion, we must vacate the administrative judge’s superfluous
findings.
In an adverse action appeal such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Campbell v.
Department of Army , 123 M.S.P.R. 674, ¶ 11 (2016). In such instances, once the
agency proves its adverse action case by a preponderance of the evidence, the
appellant must show by preponderant evidence that he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that
the disclosure was a contributing factor in the agency’s personnel action. Id. If
an appellant meets this burden, establishing a prima facie case of whistleblower
reprisal, the burden shifts to the agency to establish by clear and convincing
evidence that it would have taken the same action in the absence of the protected
disclosure. Id., ¶ 12.
The administrative judge found that the appellant’s claim failed because he
did not meet his burden of establishing a prima facie case of whistleblower
reprisal. ID at 37-39. The appellant has not argued otherwise on review, and we
discern no basis for disturbing this finding by the administrative judge.
Despite her determination that the appellant failed to meet his burden, the
administrative judge did not stop her analysis there. Instead, she further found
that, even if the appellant had presented a prima facie case of reprisal, the agency
proved that it would have taken the same action in the absence of the appellant’s
alleged disclosure. ID at 39-43. Yet, the Board is precluded from conducting this14
superfluous analysis. See Scoggins v. Department of the Army , 123 M.S.P.R. 592,
¶ 28 (2016) (recognizing that the Board may not proceed to the clear and
convincing evidence test if an appellant fails to establish his prima facie case of
whistleblower reprisal). Accordingly, we must vacate the administrative judge’s
findings that the agency proved that it would have taken the same removal action
in the absence of the appellant’s alleged disclosure.
In conclusion, the agency met its burden of proof and the appellant failed
to prove his affirmative defense. Therefore, the administrative judge correctly
sustained the appellant’s removal.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain16
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 17
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 18
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | DeFlora_MaukaliSF-0752-20-0001-I-1__Final_Order.pdf | 2024-07-15 | MAUKALI DEFLORA v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0001-I-1, July 15, 2024 | SF-0752-20-0001-I-1 | NP |
970 | https://www.mspb.gov/decisions/nonprecedential/Grace_Jenna_M_SF-0752-20-0145-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNA M. GRACE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0145-I-1
DATE: July 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jenna M. Grace , Ridgecrest, California, pro se.
Antonette Ayers and Brandon M. Barros , China Lake, California, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
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 Western Regional Office for further adjudication in accordance with
this Remand Order.
BACKGROUND
The appellant was employed by the agency as a Security Specialist and, as
such, was subject to random drug tests. Initial Appeal File (IAF), Tab 4 at 20,
45-48. In September 2019, the appellant was selected for a random drug test and
she provided a urine sample. Id. at 24, 31. Her sample tested positive for
amphetamine and methamphetamine. Id.
On November 6, 2019, the agency proposed the appellant’s removal on the
charge of providing a urine specimen that tested positive for
amphetamines/methamphetamines. Id. at 31-33. Thereafter, the deciding official
sustained the proposed removal. Id. at 21-23. The appellant’s removal was
effective December 10, 2019. Id. at 20.
This appeal of the appellant’s removal followed. IAF, Tab 1. Among other
things, the appellant referenced a November 7, 2019 letter from her primary care
physician essentially questioning the validity of the drug test. Id. at 5; IAF,
Tab 4 at 29. She also asserted that she had been retaliated against, seemingly for
filing a grievance and for voicing concerns about certain matters. IAF, Tab 24
at 5-6, 25. Although the appellant requested a hearing, IAF, Tab 1 at 2, the
administrative judge cancelled the hearing because the appellant failed to file any
prehearing submissions or appear for the prehearing conference, IAF, Tab 21 at 1.
In her initial decision, the administrative judge sustained the appellant’s
removal. IAF, Tab 25, Initial Decision (ID). She found that the agency proved
that the appellant provided a urine sample, that the urine sample tested positive
for amphetamine and methamphetamine following reliable and accurate chain of
custody and testing procedures, and that there was no legitimate medical
explanation for that test result. ID at 6-7. The administrative judge found that
the agency accordingly met its burden to prove its charge. ID at 7. In addition,2
the administrative judge found that the agency established both nexus and the
reasonableness of the penalty. ID at 7-11. The administrative judge further found
that the appellant did not raise an affirmative defense. ID at 6.
The appellant has filed a petition for review, asserting that phentermine
will result in a false positive, appearing to argue that the agency violated its
drug-testing procedures, and referencing a grievance she purportedly filed.
Petition for Review (PFR) File, Tab 1 at 4. The agency has filed a response to the
petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge abused her discretion by denying the appellant the right
to a hearing.
An administrative judge may impose sanctions as necessary to serve the
ends of justice. 5 C.F.R. § 1201.43. Absent an abuse of discretion, the Board
will not reverse an administrative judge’s determination regarding sanctions.
Leseman v. Department of the Army , 122 M.S.P.R. 139, ¶ 6 (2015).
A hearing should not be denied as a sanction absent extraordinary
circumstances. Hart v. Department of Agriculture , 81 M.S.P.R. 329, ¶ 5 (1999).
Generally, a single failure to comply with an order is insufficient to show a lack
of due diligence, negligence, or bad faith in an appellant’s compliance with an
administrative judge’s orders, so as to justify a drastic sanction such as
precluding the presentation of evidence at a hearing. Sims v. U.S. Postal Service ,
88 M.S.P.R. 101, ¶ 7 (2001). In determining whether an administrative judge
properly imposed the sanction of denying an appellant a hearing, the Board will
consider whether the administrative judge provided the appellant with a show
cause order, or some other opportunity, to explain her failure to comply with an
order. See id., ¶ 8 (noting that the administrative judge did not provide the
appellant with an opportunity to explain his failure to participate in a prehearing
conference); see also Hart, 81 M.S.P.R. 329, ¶¶ 5-7 (considering the appellant’s
explanation for failing to participate in a prehearing conference in determining3
that the administrative judge abused her discretion in denying the appellant a
hearing).
Here, on January 30, 2020, the administrative judge issued an Order and
Notice of Hearing and Prehearing Conference. IAF, Tab 8. Among other things,
the administrative judge stated in that order that prehearing submissions would be
due by February 20, 2020, and that the prehearing conference would be held on
February 24, 2020. Id. at 2, 4. Then, on February 4, 2020, the administrative
judge issued an order rescheduling the hearing and related dates. IAF, Tab 14.
The due date for the prehearing submissions was rescheduled to March 12, 2020,
and the prehearing conference was rescheduled for March 16, 2020. Id. at 1-2.
On March 19, 2020, the administrative judge cancelled the appellant’s
requested hearing because the appellant failed to file any prehearing submissions
and failed to attend the prehearing conference. IAF, Tab 21 at 1. There is no
indication that the administrative judge attempted to ascertain the reason for the
appellant’s failure, and the administrative judge did not explicitly provide the
appellant with an opportunity to object to the cancellation of her hearing.
Moreover, there is no indication that the administrative judge explicitly notified
the appellant that the hearing would be cancelled as a sanction if the appellant
failed to provide prehearing submissions and failed to participate in the
prehearing conference.
Under these unique circumstances, we find that the administrative judge
abused her discretion in cancelling the appellant’s requested hearing. We
acknowledge that the appellant’s failure to file prehearing submissions and
participate in the prehearing conference may be characterized as a failure to
comply with both the January 30, 2020 order and the February 4, 2020 order.
Nevertheless, given the close proximity in time between the two orders, the
appellant’s apparent compliance with the Board’s other orders, and the
administrative judge’s failure to provide the appellant with an opportunity to
explain her failure to comply with the orders at issue, we find that the record is4
insufficient to show a lack of due diligence, negligence, or bad faith in the
appellant’s compliance with the administrative judge’s orders so as to justify such
a drastic sanction as the cancellation of her requested hearing. See Sims,
88 M.S.P.R. 101, ¶ 8 (finding that the appellant’s failure to comply with a single
order did not warrant the sanction of denying a hearing); Hart, 81 M.S.P.R. 329,
¶ 7 (determining that the appellant’s inadvertent failure to comply with the
administrative judge’s order was not an extraordinary circumstance that
warranted the extreme sanction of the denial of a hearing). At a minimum, the
administrative judge should have provided the appellant with an opportunity to
explain her failure to file prehearing submissions and attend the prehearing
conference. See Sims, 88 M.S.P.R. 101, ¶ 8. Because the administrative judge
abused her discretion in imposing the extraordinary sanction of cancelling the
appellant’s hearing, we vacate the initial decision. See id., ¶ 1.
We observe that, below, the appellant indicated that she found the
scheduled videoconference hearing location to be inconvenient for her. IAF,
Tab 24 at 6. Furthermore, on review, the appellant raises no challenge to the
cancellation of her hearing. PFR File, Tab 1. Accordingly, on remand, the
administrative judge should first ascertain whether the appellant still seeks a
hearing in this appeal. If the appellant still seeks a hearing in this appeal, the
administrative judge should hold a hearing regarding all issues that are relevant to
this appeal.2
2 On review, the appellant argues that the administrative judge improperly discredited
her doctor’s medical opinion. PFR File, Tab 1 at 4. In light of our disposition, we need
not resolve this issue. However, to the extent resolving the dispositive issues in this
case involves weighing competing medical or other expert opinion, the administrative
judge should evaluate the evidence under the appropriate standard. See Lassiter v.
Department of Justice , 60 M.S.P.R. 138, 142 (1993 ) (finding that the standard for
resolving factual disputes and questions of credibility, as set forth in Hillen v.
Department of the Army , 35 M.S.P.R. 453, 458 (1987 ), is not the most appropriate
standard for analyzing the testimony of expert witnesses, and instead setting forth other
factors to consider in conducting such an analysis), overruled on other grounds by Haas
v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 9-14; see also Borninkhof v.
Department of Justice , 5 M.S.P.R. 77, 83-87 (1981 ) (identifying several factors to be5
The administrative judge erred in finding that the appellant raised no affirmative
defenses in this appeal.
Below, the appellant submitted into the record an email in which she
asserted that her removal was “completely retaliatory for voicing [her] concerns.”
IAF, Tab 6 at 4-5. Similarly, in her close of record submission below, the
appellant asserted—after referencing a grievance she purportedly filed—that she
felt her removal was “completely retaliatory.” IAF, Tab 24 at 5-6.
It appears that the appellant was attempting to raise an affirmative defense
of retaliation for filing a grievance. See Melnick v. Department of Housing &
Urban Development , 42 M.S.P.R. 93, 97 (1989) (finding that pro se appellants are
not required to plead the issues with the precision required of an attorney in a
judicial proceeding), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). However, the
administrative judge found in her initial decision that the appellant raised no
affirmative defense. ID at 6.
In Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 17 n.7, the Board held
that, when an administrative judge erroneously determined that an appellant
abandoned or waived an affirmative defense, and the appellant was not on notice
of her burden, a remand will be necessary to provide the appellant with adequate
notice of her burden. Here, neither the administrative judge nor the agency
provided the appellant with her burden on her potential affirmative defense of
retaliation. Thus, we turn to the question of whether the appellant waived or
abandoned this affirmative defense.
Under Thurman, the Board will consider a nonexhaustive list of factors in
determining whether an appellant will be deemed to have waived or abandoned an
affirmative defense. Id., ¶ 18. Among the relevant factors are: (1) the
thoroughness and clarity with which the appellant raised her affirmative defense;
(2) the degree to which the appellant continued to pursue her affirmative defense
in the proceedings below after initially raising it; (3) whether the appellant
considered in evaluating the probative value of hearsay evidence).6
objected to a summary of the issues to be decided that failed to include the
potential affirmative defense when she was specifically afforded an opportunity
to object and the consequences of her failure were made clear; (4) whether the
appellant raised her affirmative defense or the administrative judge’s processing
of the affirmative defense claim in her petition for review; (5) whether the
appellant was represented during the course of her appeal before the
administrative judge and on petition for review, and if she was not, the level of
knowledge of Board proceedings possessed by the appellant; and (6) the
likelihood that the presumptive abandonment of the affirmative defense was the
product of confusion, or misleading or incorrect information provided by the
agency or the Board. Id.
Applying the first factor, we acknowledge that the appellant was neither
very clear nor very thorough regarding her claim of retaliation. From an email
chain the appellant submitted into the record, it appears the appellant met with
the deciding official and a Human Resource Specialist in August 2019. IAF,
Tab 24 at 24. In a December 2019 email, the appellant asserted that, during that
meeting, she raised her concerns about a dysfunctional and hostile work
environment. Id. at 25. She then stated that she believed the reason she was
“treated so poorly during this process is completely retaliatory for voicing [her]
concerns.” Id. In addition, as previously noted, in her close of record
submission, the appellant stated that she felt “this action is completely
retaliatory” and she referenced a grievance. Id. at 5-6.
Applying the second factor, the degree to which the appellant continued to
pursue her affirmative defense in the proceedings below after initially raising it,
we note that the appellant referenced filing a grievance in her initial appeal form.
IAF, Tab 1 at 4. She referenced retaliation in a subsequent pleading as well as in
her close of record submission. IAF, Tab 6 at 4-5, Tab 24 at 6.
Regarding the third factor—whether the appellant objected to a summary of
the issues to be decided that failed to include the potential affirmative defense7
when she was specifically afforded an opportunity to object and the consequences
of her failure were made clear—the administrative judge found, in her order and
summary of the telephonic prehearing conference, that the appellant did not raise
any affirmative defense. IAF, Tab 21 at 2. However, the administrative judge
failed to inform the parties that they could object to the order and summary. Id.
Applying the fourth factor, whether the appellant raised her affirmative
defense or the administrative judge’s processing of the affirmative defense claim
in her petition for review, the appellant does not specifically raise her affirmative
defense on review, although she does reference her alleged grievance. PFR File,
Tab 1 at 4. Regarding the fifth factor, we observe that the appellant has been pro
se throughout the Board proceedings and there is no reason to believe she is
particularly knowledgeable about Board procedure. Concerning the sixth factor,
there is no indication that any presumptive abandonment of the affirmative
defense was caused by incorrect or misleading information provided by the
agency or the Board.
Considering all of the factors above, we find that the appellant raised an
affirmative defense which she did not waive or abandon. Accordingly, on remand
the administrative judge shall adjudicate this affirmative defense.3 The
administrative judge should also clarify the basis of the appellant’s claim of
retaliation and apprise her of the burdens and elements of proof of her affirmative
defense. See Guzman v. Department of Veterans Affairs , 114 M.S.P.R. 566, ¶ 19
(2010). The administrative judge must also afford the parties an opportunity to
3 On review, the appellant asserts that the deciding official was dishonest and had
reprimanded her. PFR File, Tab 1 at 4. The appellant is vague regarding both how the
deciding official was allegedly dishonest and how these assertions relate to this appeal.
To the extent the appellant is alleging that the deciding official was biased and that her
due process rights were violated, we need not consider this argument because the
appellant did not raise it below. See Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016) (stating 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).8
conduct discovery and submit evidence and argument regarding the appellant’s
affirmative defense of retaliation.4 See id.
If the appellant does not prevail on her affirmative defense on remand, the
administrative judge may incorporate into the new initial decision her original
findings with respect to the issues of the charge, nexus, and the reasonableness of
the penalty, as appropriate, taking into consideration any new testimony or other
evidence that the parties introduce.5 See id.
4 On review, the appellant alleges that the agency is “withholding crucial information
pertaining to this case,” but is vague as to what the information concerns. PFR File,
Tab 1 at 4. Moreover, she does not contend that she previously sought via discovery
the information allegedly withheld by the agency. Id. at 3; see Armstrong v. U.S. Postal
Service, 28 M.S.P.R. 45, 48 (1985 ) (finding that, when an appellant fails to take
advantage of procedures available to obtain information, including discovery, he may
not, on review, claim injury by suggesting that he was hindered in the presentation of
his appeal). Nevertheless, on remand she may pursue discovery related to her
affirmative defense of retaliation.
5 As the administrative judge indicated in the initial decision, ID at 10, the appellant
appeared to argue that the removal penalty was inconsistent with the penalties that the
agency previously levied against similarly situated employees, IAF, Tab 24 at 4. Since
the initial decision was issued, the Board has overruled some of its prior case law to
clarify that, when analyzing disparate penalty claims, broad similarity between
employees is insufficient to establish that they are appropriate comparators, and the
relevant inquiry is whether the agency knowingly and unjustifiably treated employees
who engaged in the same or similar offenses differently. Singh v. U.S. Postal Service ,
2022 MSPB 15, ¶ 14. 9
ORDER
For 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.10 | Grace_Jenna_M_SF-0752-20-0145-I-1__Remand_Order.pdf | 2024-07-15 | JENNA M. GRACE v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0145-I-1, July 15, 2024 | SF-0752-20-0145-I-1 | NP |
971 | https://www.mspb.gov/decisions/nonprecedential/Anderson_LorenzoAT-0752-19-0667-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORENZO L. ANDERSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-19-0667-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo L. Anderson , Blythewood, South Carolina, pro se.
Debra Sherman Tedeschi , Esquire, and Steven J. Phillips , Esquire, Fort
Jackson, South Carolina, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his later-rescinded removal action after finding that he
failed to establish his affirmative defense of reprisal for prior equal employment
opportunity (EEO) activity. On petition for review, the appellant argues 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).
administrative judge made several incorrect factual determinations regarding her
analysis of the sufficiency of the evidence supporting the underlying charges, and
that she erred in finding that he failed to establish his affirmative defense of
reprisal for prior EEO activity. Petition for Review (PFR) File, Tab 1.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge determined below that the agency fully rescinded
the underlying removal action. Initial Appeal File (IAF), Tab 36 at 1-2, Tab 40,
Initial Decision (ID) at 1, 5. The appellant does not challenge that conclusion.
PFR File, Tab 1. The Board will only dismiss an appeal as moot if the appellant
received all of the relief that he could have received if the matter had been
adjudicated and he had prevailed. See Green v. Department of the Air Force ,
114 M.S.P.R. 340, ¶ 7 (2010). When, as here, an appellant has outstanding,
viable claims of compensatory damages before the Board, an agency’s complete
rescission of the action appealed does not afford him all of the relief available
before the Board, so the mere rescission does not render the appeal moot. See
Currier v. U.S. Postal Service , 72 M.S.P.R. 191, 197 (1996). Because EEO2
reprisal claims, such as the appellant’s, raise possible entitlement to
compensatory damages, see Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶¶ 9,
18-19 (2016); see also 5 C.F.R. §§ 1201.201(d), 1201.202(c) (both providing for
an award of compensatory damages to a prevailing party who is found to have
been intentionally discriminated against on grounds covered under Title VII), the
administrative judge correctly adjudicated this case on the limited issue of
whether the appellant established his EEO reprisal affirmative defense, IAF,
Tabs 22, 27-28.
After considering testimony from the proposing official that she was
unaware of the appellant’s prior EEO complaints and from the deciding official
that, although he was aware of the appellant’s prior EEO complaints, they played
no role in his decision to remove the appellant, the administrative judge found
that the appellant failed to prove by preponderant evidence that the agency was
motivated by retaliatory animus based on his prior EEO activity. ID at 10-11.
We have reviewed the record, and we agree with her finding that the appellant
failed to establish his EEO reprisal claim.2
The appellant argues on review, among other things, that the administrative
judge erred in denying certain unspecified witnesses who would have testified
regarding the merits of the underlying, ultimately rescinded, removal action and
regarding the proposing official’s knowledge of the appellant’s prior EEO
complaints. PFR File, Tab 1 at 8, 11-15. However, when the administrative
judge made her rulings on witnesses in the order and summary of the prehearing
conference, she provided both parties with an opportunity to object to those
rulings. IAF, Tab 36 at 2-3. The appellant does not appear to have objected to
the rulings either before or during the hearing. The Board has held that an
2 Here, because we affirm the administrative judge’s opinion that the appellant failed to
show that any prohibited consideration was a motivating factor in the agency’s action,
we need not resolve the issue of whether he proved that retaliation was a “but-for”
cause of the agency’s decision. See Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 20-22, 29-33.3
appellant’s failure to timely object to the administrative judge’s rulings on
witnesses precludes him from doing so on petition for review. See Tarpley
v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1998). Thus, we do not consider
this claim further.
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 | Anderson_LorenzoAT-0752-19-0667-I-1__Final_Order.pdf | 2024-07-15 | LORENZO L. ANDERSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-19-0667-I-1, July 15, 2024 | AT-0752-19-0667-I-1 | NP |
972 | https://www.mspb.gov/decisions/nonprecedential/Ferguson_MaryDC-0752-20-0034-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY FERGUSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0752-20-0034-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
M. Jefferson Euchler , Esquire, Virginia Beach, Virginia, for the appellant.
Terri Farr , Fort Bragg, North Carolina, for the agency.
Deborah E. Shah , Fort Eisenhower, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On petition for review, the appellant reasserts her argument that the Board
has jurisdiction over her constructive removal appeal because she applied for
retirement based on the agency’s misrepresentations that, if she requested to
retire from her appropriated fund position, she would be converted to a
nonappropriated fund position performing the same duties. Petition for Review
File, Tab 1 at 4-7; Initial Appeal File (IAF), Tab 3 at 4-6, Tab 16 at 5-7. After
considering the appellant’s argument, we find that it was adequately addressed in
the initial decision by the administrative judge, and we discern no reason to
disturb her finding that the appellant failed to establish that the agency provided
her with misinformation on which she relied to her detriment, rendering her
decision to retire involuntary. IAF, Tab 20, Initial Decision at 2-4, 13-18;
see Covington v. Department of Health & Human Services , 750 F.2d 937, 941-43
(Fed. Cir. 1984); see also Bean v. U.S. Postal Service , 120 M.S.P.R. 397,
¶¶ 7-9, 11 (2013) (observing that a n employee may establish that the Board has
jurisdiction over a “constructive” adverse action by proving, among other things,
that she lacked a meaningful choice in the matter and it was the agency’s2
wrongful actions, such as the supplying of misinformation, that deprived her of
that choice).
Accordingly, we affirm the initial decision dismissing this appeal for lack
of jurisdiction.
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 | Ferguson_MaryDC-0752-20-0034-I-1__Final_Order.pdf | 2024-07-15 | MARY FERGUSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0034-I-1, July 15, 2024 | DC-0752-20-0034-I-1 | NP |
973 | https://www.mspb.gov/decisions/nonprecedential/Jackson_RepaunzelDC-3330-20-0704-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REPAUNZEL JACKSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3330-20-0704-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Repaunzel Jackson , Williamsburg, Virginia, pro se.
Stephen O. Barlow , Esquire, Fort Eustis, 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 Veterans Employment Opportunities Act of 1998 (VEOA) 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant asserts that she was unable to timely
submit evidence during the pendency of the appeal due to financial and
pandemic-related constraints. Petition for Review (PFR) File, Tab 1 at 3-4. The
documents primarily relate to her military service and an equal employment
opportunity complaint against an agency not involved in the present appeal. PFR
File, Tab 2 at 4-19, Tab 4 at 4-35. In addition, the appellant submitted what
appears to be a table of Federal positions for which she purportedly applied but
was not hired. PFR File, Tab 2 at 16-19. The agency has not filed a response to
the petition for review.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). However, we
have considered the appellant’s new evidence to the extent it concerns the issue2
of the Board’s jurisdiction because the Board’s jurisdiction can be raised at any
time, including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5 (considering
evidence submitted for the first time on review because it was relevant to the
Board’s jurisdiction).
Even considering the appellant’s evidence, none of the documents address
the jurisdictional issue, and she has not presented a basis for overturning the
initial decision. The appellant has not challenged the administrative judge’s
finding that she failed to prove that she had exhausted her administrative remedy
before the Department of Labor (DOL). PFR File, Tab 1 at 3-5; Initial Appeal
File (IAF), Tab 5, Initial Decision (ID) at 5; see Graves v. Department of
Veterans Affairs , 117 M.S.P.R. 491, ¶ 8 (2012) (finding that, to establish Board
jurisdiction over a VEOA claim, an appellant must, among other things, show that
she exhausted her administrative remedy with the DOL). As noted by the
administrative judge, the appellant specifically indicated in her initial appeal
form that she had not filed a complaint with DOL, and she made no statement to
the contrary on review. IAF, Tab 1 at 4; ID at 5; PFR File, Tab 1 at 3-5.
Accordingly, we find that the appeal was properly dismissed for lack of
jurisdiction.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Jackson_RepaunzelDC-3330-20-0704-I-1__Final_Order.pdf | 2024-07-15 | REPAUNZEL JACKSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3330-20-0704-I-1, July 15, 2024 | DC-3330-20-0704-I-1 | NP |
974 | https://www.mspb.gov/decisions/nonprecedential/Cadena_EricDE-0432-19-0321-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC CADENA,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DE-0432-19-0321-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bobby R. Devadoss , Esquire, McRae Cleaveland , Esquire, and Tyler J.
Sroufe , Esquire, Dallas, Texas, for the appellant.
Mark W. Hannig , Esquire, El Paso, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal pursuant to 5 U.S.C. chapter 43. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED concerning the administrative judge’s finding that the
agency failed to warn the appellant of the inadequacies of his performance in a
critical element and to also find that the agency failed to show that it
communicated to the appellant the critical elements and performance standards of
his position, we AFFIRM the initial decision.
BACKGROUND
¶2The appellant was formerly employed as an Air Interdiction Agent with the
U.S. Customs and Border Protection until the agency removed him for
unacceptable performance pursuant to 5 U.S.C. chapter 43. Initial Appeal File
(IAF), Tab 9 at 15. On September 27, 2018, the appellant was notified that he
was being placed on a 90-day performance improvement plan (PIP) from
September 28 to December 28, 2018. Id. at 282-83. Following the PIP, the
agency determined that the appellant’s performance was unacceptable and, on
February 21, 2019,2 the agency proposed the appellant’s removal. Id. at 160-65.
After affording the appellant an opportunity to respond, the agency removed him,
effective June 10, 2019. Id. at 17-21.
2 The proposal notice is inadvertently dated February 21, 2018. IAF, Tab 9 at 165.2
¶3The appellant filed a Board appeal challenging his removal and raising
affirmative defenses of whistleblower reprisal and discrimination based on his
national origin and reprisal for prior equal employment opportunity (EEO)
activity. IAF, Tab 1. After the appellant withdrew his request for a hearing,
IAF, Tab 13, the administrative judge issued an initial decision based on the
written record, IAF, Tab 22, Initial Decision (ID). The administrative judge
reversed the appellant’s removal, finding that the agency failed to prove that it
warned the appellant of the inadequacies in his performance. ID at 6-10.
The administrative judge further found that the appellant failed to prove his
affirmative defenses.3 ID at 10-23. Regarding the appellant’s whistleblower
reprisal claim, the administrative judge found that the agency proved by clear and
convincing evidence that the agency would have removed the appellant absent his
disclosure and protected activity. ID at 16-20. Regarding the appellant’s
remaining affirmative defenses, the administrative judge found that the appellant
failed to prove that his national origin or his filing of a prior discrimination
complaint were a motivating factor in his removal. ID at 21-22.
¶4The agency has filed a petition for review asserting that the administrative
judge erred in reversing the appellant’s removal. Petition for Review (PFR) File,
Tab 1. The appellant has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5At the time the initial decision was issued, the Board’s case law stated that,
in a performance-based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) the Office of Personnel Management
approved its performance appraisal system; (2) the agency communicated to the
appellant the performance standards and critical elements of his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
agency warned the appellant of the inadequacies of his performance during the
3 The appellant has not filed a petition or cross petition for review challenging these
findings.3
appraisal period and gave him a reasonable opportunity to improve; and (5) the
appellant’s performance remained unacceptable in at least one critical element.
White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013).
¶6During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit held in Santos v. National Aeronautics and
Space Administration , 990 F.3d 1355, 1360-61 (Fed. Cir. 2021), that in addition
to the five elements of the agency’s case set forth above, the agency must also
justify the institution of a PIP by proving by substantial evidence that the
employee’s performance was unacceptable prior to the PIP. The Federal Circuit’s
decision in Santos applies to all pending cases, including this one, regardless of
when the events took place. Lee v. Department of Veterans Affairs , 2022 MSPB
11, ¶ 16.
¶7The administrative judge found that the agency failed to prove that it
warned the appellant of the inadequacies of his performance because it offered no
evidence of the necessary warning at the outset of the PIP. ID at 8. In so finding,
the administrative judge noted that there was no documentation in the record
concerning the appellant’s performance ratings prior to his placement on the PIP
and the agency had not submitted a copy of the appellant’s performance plan
containing the critical elements and standards under which his performance was
measured. Id. The administrative judge further found that the PIP letter itself
failed to inform the appellant that the agency considered his performance
unacceptable; rather, it merely identified specific tasks the appellant was to
perform during the PIP. ID at 9. Similarly, the administrative judge also found
that the progress notes of the appellant’s meetings with his supervisor during the
PIP similarly did not apprise the appellant that his performance was unacceptable
but, rather, merely discussed the appellant’s progress on the specific tasks
identified in the PIP. Id. Finally, the administrative judge noted that the agency
granted the appellant a within-grade increase on October 14, 2018, two weeks4
into the PIP, thereby certifying that the appellant’s performance was at an
acceptable level. ID at 9-10.
¶8On review, the agency first contends that the administrative judge erred in
sua sponte raising the issue of whether the agency warned the appellant of the
inadequacies of his performance. PFR File, Tab 1 at 7. Such an argument is
unavailing. The agency is required to prove that it warned the appellant of the
deficiencies in his performance and afforded him a reasonable opportunity to
improve as part of its prima facie case. Cf. Mattes v. Department of the Army ,
24 M.S.P.R. 477, 480 (1984).
¶9Next, the agency asserts that the administrative judge improperly required it
to prove that it warned the appellant of the inadequacies of his performance “prior
to the appraisal period,” at the “outset of the PIP” and/or “prior to his placement
on the PIP” instead of “during the appraisal period.” PFR File, Tab 1 at 5-6. We
agree with the agency that proof of a pre-PIP warning of unacceptable
performance is not required to defend an action under chapter 43. See Harris v.
Securities and Exchange Commission , 972 F.3d 1307, 1316 (Fed. Cir. 2020)
(clarifying that the PIP notice itself often serves as the required warning in a
chapter 43 action); see also Santos, 990 F.3d at 1361-62 (reinforcing its holding
in Harris, 972 F.3d at 1316). However, as the Federal Circuit held in Santos,
990 F.3d at 1360-61, an agency must prove by substantial evidence that an
employee’s performance was unacceptable prior to the PIP. Here, although the
administrative judge correctly found an absence of pre-PIP evidence of
unacceptable performance based on the record below, the parties did not have an
opportunity to address the modified legal standard in light of Santos. ID at 9; see
Lee, 2022 MSPB 11, ¶ 16 (remanding the appeal for further evidence and
argument under the modified legal standard).
¶10Nevertheless, we need not remand this case for further adjudication because
the agency did not prove other elements of its burden of proof under chapter 43,
which were not modified by Santos. As set forth and modified below, we agree5
with the administrative judge’s ultimate conclusion that the agency failed to show
that it warned the appellant of the inadequacies in his performance in a critical
element during the appraisal period. Moreover, we also find that the agency
failed to show that it communicated to the appellant the critical elements and
performance standards of his position.4
¶11The agency has not filed a copy of the appellant’s performance plan or
otherwise identified the critical elements of the appellant’s position or explained
what the performance standards or levels were for the relevant critical elements
and/or how the tasks identified in the PIP correspond to such critical elements and
standards. See, e.g., Johnson v. Department of the Interior , 87 M.S.P.R. 359,
¶ 12 (2000) (noting that all critical elements must have performance standards,
which are defined by regulation as management approved expressions of the
performance thresholds, requirements, or expectations that employees must meet
to be appraised at particular levels of performance). Nor is it clear based on the
record whether the agency’s performance program was based on a 4-tier system
or a 2-tier pass/fail system. As part of its agency file, the agency submitted a
2008 Performance Management Program for the Department of Homeland
Security, which provides for a 4-tier system for rating each core competency and
individual performance goal as well as a 4-tier overall rating system. IAF, Tab 9
at 305-06. However, the deciding official and the appellant’s second-level
supervisor both reference a 2-tier pass/fail system. IAF, Tab 9 at 17, Tab 19
at 14.
¶12The agency’s failure to submit clear information concerning the appellant’s
performance plan, critical elements, and performance standards is problematic
4 The agency’s failure to show that it communicated to the appellant the critical
elements and performance standards of his position is also relevant to the substantive
element set forth in Santos, i.e., that the employee’s performance was unacceptable
prior to the PIP. 990 F.3d at 1361-62. Absent valid performance standards, the Board
cannot evaluate whether the appellant’s performance was unacceptable. See, e.g.,
Henderson v. National Aeronautics and Space Administration , 116 M.S.P.R. 96, ¶ 9
(2011); Ortiz v. Department of Justice , 46 M.S.P.R. 692, 695 (1991); Williams v.
Department of Health and Human Services , 30 M.S.P.R. 217, 220 (1986).6
because to sustain a chapter 43 removal the appellant’s performance inadequacies
must relate to a critical element of his position. See, e.g., Martin v. Federal
Aviation Administration , 795 F.2d 995, 997 (Fed. Cir. 1986) (stating that the
requirements incumbent upon an agency in effecting a proper chapter 43 removal
action are to set up an approved performance appraisal system, communicate the
written performance standards and “critical elements” of an employee’s position
to the employee at the beginning of the appraisal period, warn of inadequacies in
“critical elements” during the appraisal period, and counsel and afford an
opportunity for improvement after proper notice); Lovshin v. Department of the
Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (emphasizing that the statutory term
“unacceptable performance” in chapter 43 is not a synonym for generally poor
performance or inefficiency but rather is a term of art specifically defined under
5 U.S.C. § 4301(3)); 5 C.F.R. § 432.103(h) (defining unacceptable performance
as “performance of an employee which fails to meet established performance
standards in one or more critical elements of such employee’s position”);
5 C.F.R. § 432.103(b) (defining critical element as “a work assignment or
responsibility of such importance that unacceptable performance on the element
would result in a determination that an employee’s overall performance is
unacceptable”).
¶13Here, the appellant’s alleged performance deficiencies do not relate to his
primary job duties as a pilot or law enforcement agent, which involved
performing aviation law enforcement operations for the detection, prevention,
interdiction and apprehension of terrorists, terrorist weapons, and other
contraband and persons from illegally entering or attacking the United States.
IAF, Tab 9 at 286. Rather, the appellant’s alleged performance deficiencies relate
to his “collateral” vehicle officer duties, which appear to have involved
maintaining vehicles mechanically, keeping vehicle registration paperwork
current, completing vehicle reports, and drafting a local vehicle policy.
IAF, Tab 9 at 162-63, 282-83, Tab 17 at 157. Such collateral duties are not7
referenced in the appellant’s position description, IAF, Tab 9 at 286-88,
but according to the agency, they were assigned on a rotating basis at
management’s discretion, IAF, Tab 17 at 4-6, 18-20, 160-61, 165-66. Thus, it is
unclear whether such duties fall under a critical element of the appellant’s
position. See 5 C.F.R. § 432.103(b).
¶14The PIP identified three categories of job duties, including Official Duties
(Category 1), Reports (Category 2), and Communication (Category 1), which
were to be the focus of the PIP. IAF, Tab 9 at 282-83. The Official Duties and
Reports categories focused on the appellant’s vehicle officer duties.
However, the PIP does not clearly characterize these categories of job duties
under any particular critical element. Even assuming that the categories
identified in the PIP themselves constitute critical elements of the appellant’s
performance plan, the agency’s proposal notice references different critical
elements of Job Knowledge and Technical Skills, which are not mentioned in the
PIP. Id. at 160. The critical elements of Job Knowledge and Technical Skills
also do not clearly correspond to the agency’s department-wide core
competencies of Technical Proficiency, Teamwork/Cooperation,
Communications, and Representing the Agency, as set forth in the agency’s 2008
performance program contained in the agency file.5 Id. at 300.
¶15In the decision letter, the deciding official similarly references the critical
elements of Job Knowledge and Technical Skills, but he assesses the appellant’s
performance in such elements under requirements that are not contained in the
appellant’s performance plan, or even in the PIP, but, rather, are described in the
appellant’s job description. IAF, Tab 9 at 18. However, the appellant’s job
description is not a valid performance plan that sets forth performance standards
by which the agency was to measure the appellant’s performance. See, e.g.,
Betters v. Federal Emergency Management Agency , 57 M.S.P.R. 405, 409 (1993)
5 Under the 2008 program, an employee is rated pursuant to these four department-wide
core competencies as well as individual performance goals. IAF, Tab 9 at 299-300,
305-06. It is unclear what the appellant’s individual performance goals were.8
(stating that the propriety of a charge of unacceptable performance is judged not
based on a position description but rather on the employee’s performance plan
and the elements and standards derived under it); Williams v. Department of
Health and Human Services , 30 M.S.P.R. 217, 220 (1986) (stating that an agency
may not prove an employee’s unacceptable performance of a critical element
without regard to the written performance standard for that critical element).
¶16Regarding the Job Knowledge critical element, the decision letter states that
the appellant’s position description requires the “[a]bility to evaluate information
rapidly and make judicious decisions promptly, while remaining courteous and
professional” as well as the “[a]bility to communicate orally and in writing.”
IAF, Tab 9 at 18. The deciding official concluded that the appellant’s “failure to
conduct forthcoming and timely electronic communication explicitly failed these
performance standards.” Id. In contrast, the standards set forth in the PIP
required the appellant to be honest in all communications and to respond to email
traffic in a timely and adequate manner. Id. at 283.
¶17Regarding the Technical Skills critical element, the decision letter states
that the appellant’s position description requires that “[c]ompleted work products
are relied upon for soundness, accuracy, and adequacy of technical detail.
Review of work performance is primarily for accomplishment of objectives,
consistency with policies and goals and for contribution to improvements in the
aviation programs and operations.” Id. at 18. It also cites to a section in the
appellant’s job description that states, “[g]uidelines consist of the U.S. Code,
Constitutional laws, DHS rules, regulations, policies, procedures, directives and
manuals. Within the context of such broad regulatory guidelines, the incumbent
may refine or develop more specific guidelines for the measurement or
improvement of the air interdiction program.” The deciding official concluded
that the appellant’s “failure to complete the vehicle policy on time explicitly
violate[d] these components of [the appellant’s] job description.” Id.9
Such standards, however, do not require timely completion of the vehicle policy
and also differ from the standards set forth in the PIP.
¶18Under these circumstances, we find that the agency failed to show that it
communicated to the appellant the performance standards and critical elements of
his position or that it communicated to him the critical elements and standards for
which his performance was alleged to have been unacceptable.6 Cf. Atamantyk v.
Department of Defense , 49 M.S.P.R. 432, 437 (1991) (finding that the agency
failed to provide the appellant with a reasonable opportunity to improve his
performance because the performance standard component of the critical element
at issue in the agency’s proposal notice differed from the component cited in the
agency’s PIP and, thus, the appellant was not informed that his performance with
respect to the component was unacceptable prior to his proposed removal).
¶19Accordingly, we affirm the initial decision as modified.7
ORDER
¶20We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective June 10, 2019. 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.
6 For the reasons discussed above, we are not persuaded by the agency’s argument on
review that the PIP unmistakably informed the appellant that the agency considered his
performance in “critical elements” as “not satisfactorily completed” and “failures.”
PFR File, Tab 1 at 6-7. The PIP did not clearly identify the critical elements and only
advised the appellant that he was to perform certain tasks and that a certain number of
“failures” during the PIP would result in him not satisfactorily completing the PIP.
IAF, Tab 9 at 282-83. It also did not cite to or explain any performance deficiencies
under a critical element.
7 We do not address whether the agency afforded the appellant a reasonable opportunity
to improve or whether his performance was unacceptable in a critical element. Because
we reverse the removal on other grounds, we find it unnecessary to reach these issues.
See ID at 7; see also O’Neal v. Department of the Army , 47 M.S.P.R. 433, 438-39
(1991) (stating that, before holding an employee accountable for unacceptable
performance, an agency must prove that it communicated the standards against which
the employee’s performance was to be measured).10
¶21We 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.
¶22We 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).
¶23No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶24For 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.11
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 RIGHTS8
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
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain13
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 14
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16
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).17
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. 18 | Cadena_EricDE-0432-19-0321-I-1__Final_Order.pdf | 2024-07-15 | ERIC CADENA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0432-19-0321-I-1, July 15, 2024 | DE-0432-19-0321-I-1 | NP |
975 | https://www.mspb.gov/decisions/nonprecedential/Martin_JeremySF-0752-18-0738-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEREMY MARTIN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-18-0738-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeremy Martin , North Las Vegas, Nevada, pro se.
Jennie E. Breitmeyer , Esquire, Romulus, Michigan, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a Federal Air Marshal (FAM) with the Las Vegas Field
Office (LVFO) of the agency’s Transportation Security Administration (TSA).
Initial Appeal File (IAF), Tab 4 at 30. In May 2017, the appellant’s immediate
supervisor notified the appellant that he had a pattern of taking unscheduled sick
leave on days adjacent to his regular days off (RDO) and/or his scheduled
training days, and that this pattern could result in the appellant’s placement on a
leave restriction. IAF, Tab 26 at 44-45. Nevertheless, the appellant requested
unscheduled sick leave for days that were adjacent to his RDO on three occasions
in July and August 2017. Id. at 44. On August 15, 2017, the appellant’s
supervisor notified TSA’s Office of Inspection (OOI) that he believed that some
of the medical notes the appellant had submitted to support his sick leave requests
may have been altered. Id. at 43. On August 30, 2017, OOI began an
investigation of these allegations. IAF, Tab 7 at 56.2
The medical note at issue in this appeal is dated July 5, 2017, and is from
the clinic where the appellant underwent a medical procedure that day. Id. at 81.
The note, which was purportedly signed by the physician assistant (PA) who
performed the procedure, states “[the appellant] is under my care.” Id. In
addition, there is an “x” in the boxes to the left of the following two preprinted
statements on the note: “was seen in my office today” and “is released to work
on.” Id. After the latter statement, the date “7-7-17” is handwritten. Id.
On November 7, 2017, an OOI special agent (SA) interviewed the PA who
treated the appellant on July 5, 2017. IAF, Tab 7 at 85. When presented with the
note in question, the PA stated that she had not signed the note and that the clinic
had no record of providing the appellant with a note for his visit on July 5, 2017.
Id. The PA further stated that she had instructed the clinic’s employees that any
doctors’ notes that authorized patients to take time off work (time-off notes) must
be signed by her. Id. She added that it was possible that a former employee had
signed the note if it stated only that the appellant was seen in the office, i.e., if it
was a seen-in-office note; however, that individual was not authorized to give
patients time off work. Id.
On November 8, 2017, the SA interviewed the appellant, who provided the
following account of the events of July 5, 2017, as set forth in the appellant’s
written statement and the SA’s hearing testimony regarding the interview, as
summarized in the initial decision. IAF, Tab 7 at 94-95; Tab 32, Initial Decision
(ID) at 3-4. The appellant stated that he went home immediately after his
appointment at the clinic, but forgot the doctor’s note. IAF, Tab 7 at 94.
Consequently, he returned to the clinic and spoke with a receptionist, who readily
printed out another note, turned around, and handed it to the appellant. ID at 3-4
(citing Hearing Compact Disc (HCD) (testimony of the SA)). He also told the SA
that he did not actually see the receptionist or the PA sign the note. ID at 4
(citing HCD (testimony of the SA)).3
The SA then informed the appellant that he had spoken with the PA and
that she had told him that: she did not sign the note; the receptionist was not
authorized to sign a time-off note; and the clinic did not have a record of the note.
Id. The appellant reiterated that he had initially left the clinic on July 5, 2017,
without the note and returned to retrieve it, and he explicitly denied having
falsified the note or any doctor’s note. Id. Following the interview, the SA
drafted a statement that set forth the appellant’s version of events. IAF, Tab 7
at 94-95. The appellant reviewed and initialed the statement, thereby confirming
its veracity. Id.
On December 15, 2017, the appellant took a polygraph examination in
connection with the investigation. IAF, Tab 7 at 103. The polygraph detected
deception when the appellant denied falsifying any of the doctors’ notes at issue
in the investigation. Id. at 103-04. The appellant then admitted that he had not
been completely honest during his prior interview, and the SA interviewed the
appellant a second time. Id. at 104, 108.
During the interview, the appellant stated that, prior to leaving the clinic on
July 5, 2017, he received a medical note from the receptionist; however, after he
arrived home, he saw that the note was a seen -in-office note instead of a time-off
note. Id. at 110. The appellant stated that he then altered the note to reflect that
he was authorized to take time off work until July 7, 2017, but immediately felt
guilty and tore up the note. Id. The appellant claimed that he then drove back to
the clinic and requested a note indicating that he required time off, and the
receptionist complied. Id.
The appellant provided OOI a sworn statement reflecting this version of
events. Id. In the statement, he indicated that he believed the polygraph’s
detection of deception was triggered by the immense guilt he felt at having
altered the note that he destroyed. Id. The appellant added that he had not
disclosed this information initially because he did not think it was pertinent to the4
investigation, as the note he ultimately provided his supervisor was not
falsified. Id.
On May 1, 2018, the agency issued a notice proposing to remove the
appellant based on charges of lack of candor and altering a doctor’s note, each of
which was supported by two specifications. IAF, Tab 7 at 45-54. Following the
appellant’s oral and written replies to the proposal notice, IAF, Tab 4 at 32-45,
the deciding official sustained one specification of each charge and she sustained
the removal. IAF, Tab 7 at 6-14. The appellant was removed from his position
effective July 30, 2018. IAF, Tab 4 at 30.
The appellant filed a Board appeal challenging his removal and he
requested a hearing. IAF, Tab 1. He also raised affirmative defenses of age
discrimination and harmful procedural error. IAF, Tab 29.
Following a hearing, the administrative judge issued an initial decision that
affirmed the appellant’s removal. ID at 1, 21. The administrative judge found
that the agency proved the charges, ID at 11-15; that there is a nexus between the
charged conduct and the efficiency of the service, ID at 15-16; and that removal
is a reasonable penalty, ID at 19-20. She further found that the appellant did not
prove his affirmative defenses, ID at 16-18.
The appellant has filed a petition for review.2 Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 4, 6.
2 On review, the appellant does not challenge the administrative judge’s findings
regarding nexus or his affirmative defenses. We discern no reason to disturb these
findings.5
ANALYSIS
The administrative judge correctly found that the agency proved the charges by
preponderant evidence.
Altering a doctor’s note
In this charge, the agency alleged that the appellant altered a doctor’s note
from the clinic dated July 5, 2017, to show his authorized return to work date as
July 7, 2017. IAF, Tab 7 at 46.
In analyzing this charge, the administrative judge considered the relevant
documentary evidence and hearing testimony, including the testimony of the
appellant, who asserted that he had no reason to alter the medical note because he
had never been denied leave and thus had no reason to believe any leave request
would have been denied if he failed to produce a medical note. ID at 11 (citing
HCD (testimony of the appellant)).
The administrative judge rejected this assertion, finding that it was belied
by the fact that the appellant’s supervisor had required him to submit a medical
note for his July 5 appointment, a day that the appellant was scheduled to work an
outbound flight. ID at 11; IAF, Tab 26 at 48. The administrative judge also
noted that the appellant called his supervisor on July 5 to inform him that, “per
doctor’s note,” he needed to be off work July 6, when he was again scheduled to
work an outbound flight. Id. Thus, the administrative judge found, the appellant
was under pressure to provide a doctor’s note to excuse his absence for both days,
and he could expect that his absence would not have been approved if he failed to
do so. ID at 11-12.
The appellant challenges this finding on review and asserts that, in
assessing the consequences of failing to submit a doctor’s note, the administrative
judge did not address the relevant hearing testimony. PFR File, Tab 1 at 15. In
that regard, the appellant notes that he testified that he had never been denied sick
leave, three supervisory air marshals testified that they had never denied sick
leave to any FAM, and the LVFO’s Special Agent in Charge testified that she6
could not recall anyone ever being denied sick leave during her tenure at the
LVFO. Id. The appellant contends that the totality of the evidence shows that he
had no reason to believe that he would have been denied sick leave if he failed to
submit a doctor’s note for July 6. Id.
Although the testimony cited by the appellant indicates that FAMs
ordinarily were not denied sick leave, we agree with the administrative judge’s
assessment of the likely consequences of the appellant’s failure to submit a
doctor’s note to support his July 6 sick leave request. As noted above, the
appellant’s supervisor had warned him that he might be placed on a leave
restriction if he continued his pattern of requesting sick leave for days adjacent to
either his RDO or days that he was scheduled to be on a training flight, and his
supervisor had required the appellant to submit a doctor’s note in support of his
sick leave request pertaining to his July 5 appointment. IAF, Tab 26 at 44-45, 48.
Given these circumstances, we agree with the administrative judge that the
appellant could expect that his leave request would have been denied had he not
produced a doctor’s note. ID at 12.
In any event, the administrative judge’s failure to mention in the initial
decision the hearing testimony concerning FAM sick leave requests or, for that
matter, any other evidence in the record,3 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).
As noted by the administrative judge, the appellant repeatedly denied that
he altered the note at issue in this appeal. ID at 11. The administrative judge
found that the appellant was not credible and that he altered the note to reflect
3 The appellant argues on review that the administrative judge also failed to consider
other evidence, including handwriting comparisons that allegedly demonstrate that he
did not falsify any note that he submitted to FAM management. PFR File, Tab 1 at 4,
25-26.7
that he needed time off work. ID at 14. Accordingly, she found that the agency
proved the charge. Id.
In sustaining this charge, the administrative judge credited the testimony of
the clinic’s program manager that, during the period in question, seen-in-clinic
notes were not were maintained in the clinic’s computer system; however,
time-off notes were scanned into the system. ID at 13. The administrative judge
found that the only plausible reason that the clinic had no record of the time-off
note the appellant submitted to the agency is that the appellant had received a
seen-in-clinic note and altered it to reflect that he needed time off work. Id.
The appellant challenges this finding on review, arguing that the more
plausible reason that the note was not in the clinic’s computer system is that the
clinic rarely scanned any doctors’ notes into the system. PFR File, Tab 1 at 16.
In support of this argument, the appellant states that another clinic employee
testified during her deposition that time-off notes were not generally scanned into
the clinic’s computer system unless they authorized time off work for more than
1 day. Id. at 22, 24.
Based on our review of the record, we agree with the appellant to the extent
that he is arguing that the fact that the clinic has no record of the note that he
provided the agency does not necessarily mean that he did not receive that note.
As the administrative judge noted in the initial decision, during her testimony, the
program manager acknowledged that the policy of scanning time-off-notes into
the clinic’s computer system was not followed consistently and notes were not
scanned into the system with any regularity. ID at 6 (citing HCD (testimony of
program manager). Thus, it is certainly feasible that the clinic might not have a
record of a time-off note that was issued during this period.
However, we disagree with the appellant’s claim that the only plausible
finding is that he did not falsify the doctor’s note. As discussed below, in finding
that the appellant altered the note, the administrative judge identified several
reasons that the appellant was not credible, including his demeanor and his8
inadequate explanations for the inconsistencies in his various versions of the
events at issue. ID at 11-14. Given the administrative judge’s explained and
comprehensive credibility findings, even assuming arguendo that the clinic did
not scan time-off notes into its computer system for 1-day absences, as the
appellant contends, or failed to do so consistently, as the program manager
testified, we find that this provides no basis for disturbing the administrative
judge’s finding that the agency proved this charge.
In support of her determination that the appellant was not credible, the
administrative judge observed that, after his initial interview with the SA on
November 8, 2017, the appellant changed his version of events on the following
three points: (1) whether he had the medical note with him when he left the clinic
after the procedure; (2) whether the receptionist left his sight before giving him
the note; and (3) why he asked for the note. ID at 12-13.
Regarding the first point, as previously noted, the appellant initially stated
that he forgot the doctor’s note when he left the clinic and returned to the clinic
to obtain it. IAF, Tab 7 at 94. After the polygraph detected deception when he
denied having falsified a medical note, the appellant revised his version of events,
stating that he left the clinic with the note, altered the note after he arrived home
to indicate that he was authorized to be off work until July 7, 2017, tore up the
note, and returned to the clinic to obtain a new note. Id. at 110.
On review, the appellant reiterates the explanation for this apparent
inconsistency that he presented in his prehearing submission. PFR File, Tab 1
at 10; IAF, Tab 27 at 10. The appellant asserts that, during his first interview
with the SA, he did not mention that he was given a medical note when he left the
clinic following his July 5, 2017 appointment because he was focused on the facts
surrounding the note that he submitted to the agency, not on the note that he did
not provide to the agency. PFR File, Tab 1 at 10.
This explanation is unpersuasive. The appellant did not merely fail to
mention that he took a doctor’s note with him when he left the clinic following9
his appointment; he affirmatively stated that he left the office without a note. If
we accept the appellant’s revised version of events as true, this statement was
patently false. Moreover, his explanation for failing to mention that he had
received a note until the polygraph detected deception (i.e., that he was focused
on the note that he submitted to the agency) does not address why he initially
stated that he left the clinic without a note. Given these circumstances, we agree
with the administrative judge that the appellant’s inconsistent statements as to
whether he left the clinic with a note detract from his credibility. ID at 12.
As for the second point , the administrative judge found that, during
his interviews with the SA and in his initial written statement dated
November 8, 2017, the appellant did not claim that the receptionist left his view
before providing him with the medical note. ID at 12; IAF, Tab 7 at 94, 110.
Moreover, the administrative judge found, the appellant’s written statement
suggested that the act of printing the note and handing it to him was seamless and
uninterrupted. ID at 12; IAF, Tab 7 at 94-95, Tab 27 at 8. The administrative
judge observed that, during the processing of this appeal, however, the appellant
claimed that the receptionist left his view briefly, implying that she had an
opportunity to retrieve a provider’s signature or sign the note outside of his
presence. ID at 12 (citing HCD (testimony of the appellant)); IAF, Tab 27 at 8.
In finding that the appellant’s failure to mention that the receptionist left
the area before providing him with a doctor’s note detracted from his credibility,
the administrative judge considered the appellant’s statement in his prehearing
submission that he did not mention this information earlier because he did not
realize that “how he obtained the doctor’s note was relevant.” ID at 12 (emphasis
in the original); IAF, Tab 27 at 10. The administrative judge characterized this
statement as “self-serving” and did not credit it, finding that the appellant made a
point from the outset of explaining how he obtained the note. Id. In particular,
the administrative judge noted that, in his November 8, 2017 written statement:
(1) the appellant claimed that he went home from the clinic without a note and10
then returned to obtain the note as an “afterthought”; and (2) the appellant stated,
“[The receptionist] just filled out the letter and gave it to me. I had no idea that
the doctor did not sign the letter or that the young lady failed to document giving
me the letter in the computer system.” ID at 12-13; IAF, Tab 7 at 94-95.
On review, the appellant argues that the administrative judge erred by not
crediting his statement, asserting that just because something is “self -serving”
does not mean it is not true. PFR File, Tab 1 at 16. Although a statement that is
self-serving is not necessarily untrue, that does not mean, as the appellant appears
to suggest, that his statement was true. Moreover, while the Board has held that
an appellant’s testimony should not be discredited solely on the basis that it is
self-serving, Nicoletti v. Department of Justice , 60 M.S.P.R. 244, 249 (1993), the
self-serving nature of the appellant’s statement was just one factor that the
administrative judge considered in assessing the appellant’s credibility, and we
discern no reason to disturb the administrative judge’s implied finding that the
appellant failed to adequately explain why he did not mention the receptionist
leaving his sight until the proceedings below.
Turning to the third point, the administrative judge observed that the
appellant initially stated that he decided to obtain a doctor’s note as an
“afterthought,” but subsequently claimed in his December 15, 2017 written
statement that he obtained the note because he wanted an extra day off work, as
he was sore, physically and emotionally tired, and his supervisor was harassing
him. ID at 13; IAF, Tab 7 at 94, 110. The administrative judge rejected as
implausible the appellant’s argument in his prehearing submission that
harassment was not the real reason he requested sick leave and he was merely
noting his feelings in making the above statement. ID at 13; IAF, Tab 27 at 18.
The administrative judge noted that the appellant reviewed his statement and
initialed each paragraph in his statement, and she found that he cannot credibly
claim that he did not understand what was written. ID at 13; IAF, Tab 7 at 110.11
On review, the appellant does not specifically challenge the administrative
judge’s finding but, rather, reiterates the argument that the administrative judge
rejected in the initial decision. Compare PFR File, Tab 1 at 20 with IAF, Tab 7
at 18. Thus, this argument amounts to mere disagreement with the
administrative judge’s findings and, as such, it does not provide a basis for
reversal. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997)
(stating that the Board will give due deference to the credibility findings of the
administrative judge and will not grant a petition for review based on a party’s
mere disagreement with those findings); Broughton v. Department of Health and
Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
In assessing the appellant’s credibility, the administrative judge also
properly found that the appellant’s undisputed untruthfulness in the past
adversely affected his credibility in this case. ID at 13-14 (citing Carrick v. U.S.
Postal Service, 67 M.S.P.R. 280, 283 (1995), aff’d, 69 F.3d 555 (Fed. Cir. 1995)
(Table) (stating that, although prior misconduct may not be used to prove the
charge at issue, impeachment evidence, which may include prior misconduct, can
be used to determine the credibility of a witness)). As discussed in the initial
decision, in 2013, the appellant called in sick shortly before a flight when he was
not sick, and in 2016 he falsely denied smoking an e-cigarette on an airplane
while on duty. ID at 6-7.
The administrative judge also made specific demeanor findings to explain
why she did not credit the appellant’s testimony that he did not commit the
alleged misconduct. ID at 14. The administrative judge found that the appellant
testified in a manner that was not confident or candid, and repeatedly clenched
his hands during his testimony. Id. The administrative judge further found that
the appellant failed to adequately explain obvious inconsistencies, and that his
testimony was convoluted and not plausible. Id.; Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987).12
The Board must give due deference to an administrative judge’s credibility
determinations when, as here, they are based on the observation of the demeanor
of witnesses testifying at a hearing; 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). Sufficiently sound reasons for
overturning an administrative judge’s demeanor-based credibility determinations
include circumstances when the judge’s findings are incomplete, inconsistent
with the weight of the evidence, and do not reflect the record as a whole.
Faucher v. Department of the Air Force , 96 M.S.P.R. 203, ¶ 8 (2004). The
appellant has not presented sound reasons for the Board to revisit the
administrative judge’s credibility findings. Thus, we discern no reason to disturb
the administrative judge’s findings in this regard. 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). Accordingly, we find that the administrative judge properly
sustained this charge.
Lack of candor
In support of the lack of candor charge, the agency alleged that, during his
November 8, 2017 interview with the SA, the appellant was not forthcoming and
candid when he stated that he had received a doctor’s note from the clinic for his
visit on July 5, 2017. IAF, Tab 7 at 46.
To prove a lack of candor charge, the agency must prove that an appellant
was not fully forthcoming and candid as to all facts and information relevant to
the matter at issue, whether or not such information was specifically elicited. See
Ludlum v. Department of Justice , 278 F.3d 1280, 1284 (Fed. Cir. 2002). Lack of
candor may involve a failure to disclose something that, in the circumstances,
should have been disclosed to make a statement accurate and complete. Id.
Although a lack of candor charge does not require an affirmative13
misrepresentation, it does involve an element of deception, and an agency
alleging lack of candor must prove that the appellant knowingly gave incorrect or
incomplete information. Fargnoli v. Department of Commerce , 123 M.S.P.R.
330, ¶¶ 16-17 (2016).
Applying this standard, the administrative judge found that the appellant
lacked candor by not identifying to the SA what type of note he actually received
from the clinic. ID at 15. The administrative judge further found that this
omission was deceptive because the reason the appellant omitted this information
is that he did not want the SA to know he had altered the note and used it to
excuse his absence from work on July 6. Id. Therefore, the administrative judge
found, the agency proved this charge. Id.
The appellant challenges this finding on review. PFR File, Tab 1 at 17-20,
24-25. He asserts that, to prove this charge, the agency must show that he
attempted to deceive the agency by representing that he received a doctor’s note
when he had not. Id. at 19, 25. The appellant argues, in essence, that the agency
cannot prove this charge because he did, in fact, receive a note from the clinic.
Id. at 25.
This argument is unavailing. Although the appellant received a note from
the clinic, the administrative judge found, and we agree, that the type of note he
received was a seen-in-office note, not a time-off note. ID at 15. This distinction
is significant because, unlike a time-off work note, a seen-in-office note was not
sufficient to support the appellant’s absence from work on July 6. We also
discern no reason to disturb the administrative judge’s finding that the appellant
failed to inform the SA which type of doctor’s note he received so that the SA
would not know that the appellant had received a seen-in-office note, rather than
a time-off note. ID at 15. Accordingly, we find that the administrative judge
correctly sustained this charge. 14
The administrative judge correctly found that removal is a reasonable penalty.
The appellant also asserts on review that the penalty of removal is
unreasonable; however, his only argument in support of this assertion is that the
agency failed to prove the charges against him. PFR File, Tab 1 at 26-27. As
discussed above, we find that the administrative judge correctly found that the
agency proved its charges. Thus, the appellant’s argument provides no basis to
disturb the removal penalty.
In any event, we agree with the administrative judge that the agency
properly considered the relevant factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981),4 in determining the appropriate
penalty and reasonably exercised its management discretion. ID at 20.
Recognizing that the Board must accord proper deference to the agency’s primary
discretion in managing its workforce, we see no reason to disturb the
administrative judge’s finding that the penalty of removal does not clearly exceed
the bounds of reasonableness in this case. Id.; see Douglas, 5 M.S.P.R. at 306 .
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
4 As aggravating factors, the deciding official considered the seriousness of the
appellant’s misconduct, his status as a law enforcement officer, and his prior discipline,
which consisted of a 7-day suspension in 2016 for failing to follow policy when he
smoked an e-cigarette on a flight and a 1-day suspension in 2014 for missing his
mission when he called in sick although he was not actually sick. Tab 7 at 10; Cantu v.
Department of the Treasury , 88 M.S.P.R. 253 (2001) (holding that law enforcement
officers are held to a higher standard of conduct); Cordeiro v. Department of the Navy ,
8 M.S.P.R. 103 (1981) (holding that an agency may consider prior discipline in
determining the appropriate penalty). As mitigating factors, the deciding official
considered the appellant’s 25 years of Federal service, his positive performance ratings,
and that he did not feel well on July 5. IAF, Tab 7 at 11.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 16
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the17
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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 of18
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. 19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.20 | Martin_JeremySF-0752-18-0738-I-1__Final_Order.pdf | 2024-07-15 | JEREMY MARTIN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-18-0738-I-1, July 15, 2024 | SF-0752-18-0738-I-1 | NP |
976 | https://www.mspb.gov/decisions/nonprecedential/Abreu_Velez_Ana_M_AT-1221-23-0147-W-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANA MARIA ABREU VELEZ,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
AT-1221-23-0147-W-1
DATE: July 15, 2024
THIS ORDER IS NONPRECEDENTIAL1
Ana Maria Abreu Velez , Atlanta, Georgia, pro se.
DeAnna Arcement , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant is a dermatologist who, since 2016, applied for approximately
60 positions at the Centers for Disease Control and Prevention (CDC), an agency
within the Department of Health and Human Services (HHS), and has not been
selected. Abreu Velez v. Department of Health and Human Services , MSPB
Docket No. AT-3443-23-0033-I-1, Initial Appeal File (0033 IAF), Tab 22
at 18-19, 26-27. In January 2018, the appellant emailed the Office of Special
Counsel (OSC) requesting an investigation into retaliation by the CDC for her
exposure of “the biggest pharmaceutical scam in US and worldwide.” Id. at 7-8.
In October 2022, having received no reply from OSC, she filed an IRA appeal
with the Board. 0033 IAF, Tab 1. The instant appeal was docketed in January
2023 after the appellant submitted January 5, 2023 closure letters from OSC that
indicated that she had made new allegations of protected disclosures that
concerned another matter. 0033 IAF, Tab 25 at 8-10; Abreu Velez v. Department
of Health and Human Services , MSPB Docket No. AT-1221-23-0147-W-1, Initial
Appeal File (0147 IAF), Tabs 1-2.
¶3After docketing the instant appeal, the administrative judge ordered the
appellant to submit argument and evidence concerning the Board’s IRA
jurisdiction—specifically, a list of her protected disclosures, the dates she made
them, the individuals to whom she made the disclosures, why her belief in the
truth of the disclosures was reasonable, and the agency’s retaliatory actions, as
well as evidence establishing that she exhausted her administrative remedy with
OSC. 0147 IAF, Tab 3 at 7-8. The appellant responded timely by describing
various matters about which she claimed to have made disclosures. 0147 IAF,
Tab 4. The administrative judge issued a second order providing the appellant
with a final opportunity to submit the requisite list. 0147 IAF, Tab 6 at 2. The2
appellant filed two additional responses, including a list of over 40 alleged
disclosures. 0147 IAF, Tab 7 at 34-37, Tab 10. The agency responded with a
motion to dismiss for lack of jurisdiction. 0147 IAF, Tab 11.
¶4Without holding a hearing, the administrative judge issued an initial
decision in April 2023, considering the appellant’s two sets of claims made to
OSC. 0147 IAF, Tab 14, Initial Decision (ID). He assumed, without deciding,
that the appellant exhausted her administrative remedy with OSC. ID at 5. He
determined that the appellant’s first set of claims of alleged disclosures, i.e., the
“pharmaceutical scam,” concerned wrongdoing by non-Federal Government
entities that did not implicate the government’s interests and good name. ID
at 5-7. Thus, he determined that those alleged disclosures could not provide
Board jurisdiction. Id. He determined that the appellant’s second set of claims
concerned alleged disclosures that the CDC engaged in unsuitable hiring practices
for positions for which the appellant applied and was not selected, but that the
appellant did not articulate a plausible basis for a reasonable belief in the truth of
those disclosures. ID at 8-9. Alternatively, he found that she failed to describe a
plausible connection between her alleged disclosures and her nonselections. ID
at 9-11. Thus, he dismissed her IRA appeal for lack of jurisdiction. ID at 11.
¶5The appellant has submitted a timely petition for review. Petition for
Review (PFR) File, Tab 1. She argues that she had not been aware that her
alleged protected disclosures must pertain to wrongdoing by the Federal
Government, and she submits additional evidence. PFR File, Tab 1 at 13. The
agency has responded in opposition to her petition for review.2 PFR File, Tab 3.
2 The appellant submitted over 600 pages of documents with her petition for review,
PFR File, Tab 1, and after the close of the record on review, she filed a motion for leave
to submit an additional pleading, PFR File, Tab 4. In its response to the petition for
review, the agency argues that the evidence submitted by the appellant is duplicative,
irrelevant, or should not be considered by the Board because it was available prior to
the close of the record below. PFR File, Tab 3 at 6. The Board ordinarily will not
consider evidence or argument submitted for the first time on review unless the party
shows that it was unavailable when the record closed below, see 5 C.F.R.
§ 1201.115(d), but it has stated that it may consider newly submitted evidence if it3
DISCUSSION OF ARGUMENTS ON REVIEW
¶6Under 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 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). Edwards v. Department of
Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir.
July 7, 2023); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016).
¶7The Board’s regulation at 5 C.F.R. § 1201.4(s) defines a “nonfrivolous
allegation” as “an assertion that, if proven, could establish the matter at issue”
and specifies that an allegation generally will be considered nonfrivolous when,
under oath or penalty of perjury, an individual makes an allegation that: (1) is
more than conclusory; (2) is plausible on its face; and (3) is material to the legal
issues in the appeal. Williams v. Department of Defense , 2023 MSPB 23, ¶ 8 n.2.
For purposes of determining IRA jurisdiction, “the question of whether the
appellant has non-frivolously alleged protected disclosures that contributed to a
personnel action must be determined based on whether the individual alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
implicates the Board’s jurisdiction and warrants an outcome different from that in the
initial decision. Schoenig v. Department of Justice , 120 M.S.P.R. 318, ¶ 7 (2013).
While we find that the appellant has established the Board’s jurisdiction even without
the newly submitted argument and evidence, we nevertheless discuss some of the
evidence herein; however, we deny the appellant’s motion for leave to submit additional
argument and evidence on petition for review. On remand, the parties will have an
opportunity to raise before the administrative judge further argument and evidence,
including those that were not addressed on review. The administrative judge should
consider the additional submissions to the extent they are relevant and it is otherwise
appropriate to do so.4
face.” Id. (citing Hessami v. Merit Systems Protection Board , 979 F.3d 1362,
1369 (Fed. Cir. 2020)). Once an appellant establishes jurisdiction over her IRA
appeal, she is entitled to a hearing on the merits of her claim, which she must
prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5.
The appellant satisfied her obligation to exhaust before OSC her nonselections by
the CDC.
¶8The administrative judge assumed without deciding that the appellant
exhausted her claims before OSC. ID at 5. Because the Board has an obligation
to determine whether it has jurisdiction over an appeal, we find it necessary to
revisit this issue. See Parrish v. Merit Systems Protection Board , 485 F.3d 1359,
1362 (Fed. Cir. 2007).
¶9To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant
must have provided OSC with a sufficient basis to pursue an investigation into
their allegations of whistleblower reprisal. Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶ 7; Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. Although the Board’s jurisdiction over an IRA appeal is
limited to those issues that have been previously raised with OSC, an appellant
may give a more detailed account of their whistleblowing activities before the
Board than they did to OSC. Briley v. National Archives and Records
Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001); Chambers, 2022 MSPB 8,
¶ 10. The appellant must prove exhaustion with OSC by preponderant evidence,
not just present nonfrivolous allegations of exhaustion. 5 U.S.C. § 1214(a)(3);
Chambers, 2022 MSPB 8, ¶ 11; 5 C.F.R. § 1201.57(c)(1). Allegations provided
in Board forms that required attestation are sufficient to prove exhaustion if such
allegations are unrebutted. See Chambers, 2022 MSPB 8, ¶ 11 n.7.
¶10Here, the appellant has submitted evidence proving exhaustion of some, but
not all, of the claims she currently raises with the Board. In its January 5, 2023
closure letters, OSC summarized the appellant’s claims as alleging that the CDC
continuously and unlawfully did not select her for employment in retaliation for5
whistleblowing and protected activity. 0147 IAF, Tab 1 at 8-9. The letter
provided that she identified her protected activity as “the filing of numerous
reports between 2016 until the present to several agency officials, regarding [her]
non selection to numerous positions for which [she] applied.” Id. at 8. In her
sworn Board pleadings, the appellant asserts that she also raised other matters
with OSC. 0147 IAF, Tab 7 at 15-16. She submitted as evidence in the course of
her initial Board appeal a completed OSC complaint in a modified format along
with sworn allegations that she submitted this document to OSC. 0033 IAF,
Tab 22 at 4, 8, 11, 13-37.
¶11Based on this document, we find that the appellant exhausted with OSC
continuous and allegedly retaliatory nonselections by the CDC for the protected
activity of complaining to the Office of Inspector General (OIG) of HHS. Id.
at 25-26, 32-34. We also find that she exhausted retaliation by the CDC for
protected disclosures including disclosures of a pharmaceutical scam involving
the Federal Government, disclosures of whistleblower retaliation, and disclosures
of other improper hiring practices by the CDC. Id. at 20-27. She set forth a
nonexhaustive list of disclosures that included the dates of the disclosures, the
individuals to whom she made the disclosures, and how she made them, e.g., via
FedEx or email. Id. at 29-37. Such information provided OSC with a sufficient
basis to pursue their investigation into the allegedly retaliatory personnel actions
by the CDC. See Chambers, 2022 MSPB 8, ¶ 10. As the appellant may give a
more detailed account of her whistleblowing activities before the Board, we may
consider all communications that the appellant has alleged in her Board pleadings
that stem from these core claims in assessing the remaining jurisdictional
requirements. 0147 IAF, Tab 7 at 34-37; see Briley, 236 F.3d at 1378.
¶12We note that not all of the appellant’s allegations before the Board were
exhausted with OSC. For the first time on review, the appellant submits new
argument and evidence that individuals at the Food and Drug Administration
(FDA) retaliated against her for several disclosures made to the Commissioner,6
Principal Deputy Commissioner, and Director of the Advisory Committee
Oversight and Management Staff in late 2022 concerning improper waivers of
conflicts of interest of FDA advisory committee members and reviewers. PFR
File, Tab 1 at 43, 49-50, 62-67. Notably, she submits an email from the Director
stating that, based on her “inflammatory remarks . . . regarding FDA’s advisory
committees and reviewers,” he determined that she would “not be a good fit” for
the advisory committees” and “initiated a hold on [her] application, resulted in
the automated rejection letters being sent.” Id. at 43. Because the appellant did
not raise with OSC claims of retaliation by the FDA for these disclosures, we find
that she has not established the Board’s IRA jurisdiction over her nonselections to
advisory committee positions with the FDA.3 0033 IAF, Tab 22 at 13-37;
0147 IAF, Tab 7 at 15-16.
The appellant has made nonfrivolous allegations that she made protected
disclosures and engaged in protected activity.
¶13A protected disclosure is one which the individual “reasonably believes
evidences: (i) any violation of any law, rule, or regulation, or (ii) 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). The
proper test for determining whether an individual had a reasonable belief that a
disclosure was protected is whether a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by her could reasonably
conclude that: (1) the alleged wrongdoing occurred; and (2) the alleged
wrongdoing evidences one of the categories identified in 5 U.S.C. § 2302(b)(8).
3 If the appellant has filed or intends to file an OSC complaint regarding her
nonselections for advisory committee positions with the FDA, she may file a new IRA
appeal regarding such a claim. Such an appeal must be filed consistent with law and the
Board’s regulations. Under 5 U.S.C. § 1214(a)(3), an appellant may file an IRA appeal
with the Board once OSC closes its investigation into her complaint and no more than
60 days have elapsed since notification of the closure was provided to her or 120 days
have elapsed since she sought corrective action from OSC and she has not been notified
by OSC that it shall seek corrective action on her behalf. Cooper v. Department of
Veterans Affairs, 2023 MSPB 24, ¶ 7 n.2.7
Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶ 28 (2014). The
test for protected status is not the truth of the matter disclosed but whether it was
reasonably believed. Id.
¶14The administrative judge found that the appellant’s numerous alleged
disclosures of a “pharmaceutical scam” were not protected because they did not
concern wrongdoing by the Federal Government. ID at 6-8. He reasoned that the
appellant described the Federal Government as the victim of the illegal acts of
non-Federal Government entities, including Gilead Sciences, Inc. (a
biopharmaceutical company), Emory University, and University System of
Georgia, rather than a participant in the alleged wrongdoing. ID at 7. The
administrative judge further found that the Federal Government’s interests and
good name were not implicated in the alleged wrongdoing. ID at 6-7. We
disagree with these conclusions.
¶15The Board has held that a disclosure of wrongdoing committed by a
non-Federal Government entity may be protected only when the Government’s
interests and good name are implicated in the alleged wrongdoing. Covington v.
Department of the Interior , 2023 MSPB 5, ¶¶ 16, 20. The appellant allegedly
disclosed that these non-Federal Government entities, which she has called “the
cartel,” violated several laws in the process of obtaining new drug approvals and
patents for old, generic human immunodeficiency virus (HIV) and hepatitis drugs,
gaining lucrative monopolies on these drugs for a period of time. 0033 IAF,
Tab 22 at 20-25; 0147 IAF, Tab 4 at 8-12, Tab 7 at 5-9, 43-51. She also allegedly
disclosed that the Federal Government wasted trillions of dollars in payments
through Medicare and Medicaid and the Department of Veterans Affairs for these
drugs—compared to the millions it would have paid on the generic drugs—and
that the unaffordability of these drugs harmed public health and safety.
0147 IAF, Tab 7 at 5, 47. We find that these disclosures implicate the interests
and good name of agencies within HHS, particularly the FDA, which is
responsible for evaluating and approving new drugs for American consumers.8
See 21 C.F.R. part 314; see also FDA, Development & Approval Process,
Drugs, https://www.fda.gov/drugs/development-approval-process-drugs (last
visited July 10, 2024) (describing its Center for Drug Evaluation and Research as
“the main consumer watchdog” of the pharmaceutical system); cf. Covington,
2023 MSPB 5, ¶ 25 (finding that an Indian tribe’s alleged conflict of interests
concerning timber sales implicated the agency’s reputation in its oversight of
Indian resources and land). In fact, the appellant has expressly alleged that the
FDA failed in its regulatory obligations in approving these drugs and claimed
such in at least one of her alleged disclosures. See, e.g., 0147 IAF, Tab 7 at 23;
see also 0033 IAF, Tab 22 at 25; PFR File, Tab 1 at 16, 20, 22, 30.
¶16We further find that the appellant has nonfrivolously alleged a reasonable
belief in the truth that wrongdoing occurred and that it evidences a category of
wrongdoing under section 2302(b)(8). Shannon, 121 M.S.P.R. 221, ¶ 28. The
appellant has argued that she can prove that the cartel illegally acquired drug
approvals and patents through a comparison of New Drug Applications (NDAs)
submitted to the FDA, which are allegedly in her possession, and she has
provided some medical explanation for how the differences in the new drugs from
the old, generic drugs have no significance in terms of effectiveness. 0033 IAF,
Tab 22 at 23-25; 0147 IAF, Tab 7 at 5-9, 13. She has also pointed to other
alleged deficiencies in the NDAs that made the FDA’s approval of the new drugs
improper. See, e.g., PFR File, Tab 1 at 22. She has submitted some evidence of
Federal Government spending on these medications, which she appears to have
obtained through Freedom of Information Act (FOIA) requests. See, e.g., id.
at 216-39. Considering the appellant’s education and experience in the field of
clinical trials compliance and research, see id. at 412-13, we find that the
appellant has made nonfrivolous allegations as to the reasonableness of her belief
that the approval/patenting of these drugs and the Federal Government’s
subsequent purchases of these medications through its programs violated rules or
laws and/or constituted gross mismanagement and gross waste of funds,9
0033 IAF, Tab 22 at 20-25; 0147 IAF, Tab 7 at 5-9; see, e.g., Kalil v. Department
of Agriculture, 96 M.S.P.R. 77, ¶ 16 (2004) (discussing various cases in which
the Board has considered an individual’s background or education in determining
whether they had a reasonable belief that a category of wrongdoing occurred).
Moreover, any doubt or ambiguity as to whether the appellant has made a
nonfrivolous allegation of a reasonable belief should be resolved in favor of
affording the appellant a hearing. Huffman v. Office of Personnel Management ,
92 M.S.P.R. 429, ¶ 13 (2002). Thus, we find that she has made nonfrivolous
allegations of protected disclosures.4 0147 IAF, Tab 7 at 10-13.
¶17We also find that the appellant nonfrivolously alleged that she engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(C). 0147 IAF, Tab 4 at 12, 18,
Tab 7 at 11-12; 0033 IAF, Tab 22 at 40. Under 5 U.S.C. § 2302(b)(9)(C), any
disclosure of information to OIG or OSC is protected regardless of its content as
long as such disclosure is made in accordance with applicable provisions of law.
Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8.5 In her OSC complaint
and Board pleadings, she lists emails from HHS OIG with subject lines such as,
“Confirmation Receipt for Healthcare Fraud” and “Confirmation Receipt for
Other Complaint,” sent on November 28, 2020; September 5, 2021; November 3,
2021; and October 14, 2022. 0033 IAF, Tab 22 at 29-33; 0147 IAF, Tab 7
at 11-12.6 Such is sufficient to find that the appellant made nonfrivolous
4 The appellant also allegedly disclosed that several employees of HHS accepted bribes
from the cartel and that several top-level executives held conflicts of interest with the
cartel. See, e.g., 0033 IAF, Tab 22 at 21-22; 0147 IAF, Tab 4 at 10, Tab 7 at 5-10,
13-14, 19-23, 53-56, Tab 10 at 5-6, 9. We need not determine whether the appellant has
made nonfrivolous allegations of a reasonable belief in the truth of each and every
matter disclosed in a communication. See generally Skarada , 2022 MSPB 17, ¶ 13 (the
Board has jurisdiction if the appellant makes a nonfrivolous allegation that she made at
least one protected disclosure that was a contributing factor in at least one personnel
action).
5 However, the nature of the disclosure may be relevant at the merits stage, when an
appellant must prove contributing factor. Fisher, 2023 MSPB 11, ¶ 8 n.1.
6 The appellant submits some evidence on review of her protected activity, including
her October 14, 2022 complaint to HHS OIG and OIG’s response referring her to OSC.10
allegations that she made disclosures in accordance with OIG’s complaint
processes and thus engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
¶18Finally, we find that the appellant nonfrivolously alleged protected
disclosures of whistleblower retaliation based on the above. The appellant has
alleged that she complained to various HHS employees and executives that the
CDC was continuing to retaliate against her for her protected whistleblower
disclosures or activities, which allegedly contributed to her continued
nonselections for positions with the CDC. See, e.g., 0147 IAF, Tab 7 at 19-21,
25-26, 68-69; PFR File, Tab 1 at 105-08. She has explained that the repeated
rejections of her applications, including for erroneous reasons such as not
meeting basic eligibility requirements like citizenship or education, led her to
believe that she had been blacklisted from all CDC jobs since 2016. 0147 IAF,
Tab 7 at 14; see also PFR File, Tab 1 at 21, 27, 33-36, 79, 81, 109 -11, 505.
Consistent with our other findings, we find that the appellant has made
nonfrivolous allegations as to the reasonableness of her belief in the matter
disclosed when she complained of whistleblower retaliation.
The appellant has nonfrivolously alleged that at least one protected disclosure or
activity was a contributing factor in at least one personnel action.
¶19The appellant has listed numerous vacancies at the CDC from 2016 through
2022 for which she applied but was not selected. 0147 IAF, Tab 4 at 20-24. She
alleges that she has been blacklisted from all positions with the CDC, which has
been effectuated either through software automatically rejecting her applications
or the individual actions of Human Resources Office (HRO) employees. PFR
File, Tab 1 at 21, 33-36, 81, 109, 505. She accuses the Chief Operating Officer
of the CDC, who oversees the HR department, among others, of being a leader of
this retaliatory plot. 0033 IAF, Tab 22 at 25; 0147 IAF, Tab 10 at 7; PFR File,
Tab 1 at 105. The administrative judge, addressing the appellant’s alleged
whistleblower disclosures and activities en masse, found that she failed to
See, e.g., PFR File, Tab 1 at 308-13, 332-38.11
describe a plausible connection between her alleged disclosures and activities and
her nonselections. ID at 9-11. He reasoned that she failed to allege any facts that
could show that agency officials involved in her hiring determinations had
knowledge of her alleged disclosures or activities. ID at 10. He further found
that the “chain of events” she described was “both conclusory and implausible.”
Id.
¶20We generally agree that some aspects of the alleged blacklisting plot, as
well as its scale, seem implausible.7 However, we do not agree with the
administrative judge’s conclusions because we find that the appellant has made
nonfrivolous allegations that at least one of her nonselections8 was taken in
reprisal for at least one alleged protected disclosure or activity. See Skarada,
2022 MSPB 17, ¶ 13. To satisfy the contributing factor criterion at the
jurisdictional stage, an appellant need only raise a nonfrivolous allegation that the
fact or content of a protected disclosure was one factor that tended to affect a
personnel action in any way. Abernathy v. Department of the Army , 2022 MSPB
37, ¶ 15. One way to establish contributing factor for jurisdictional purposes is
circumstantial evidence, such as the acting official’s knowledge of the protected
activity and the timing of the personnel actions. Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446, ¶ 7 (2014). An appellant’s nonfrivolous
allegation that the official taking the personnel action knew of the protected
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the activity was a contributing factor in the
personnel action is sufficient to meet the knowledge/timing test and to satisfy the
appellant’s burden to make a nonfrivolous allegation of a contributing factor. Id.
7 For example, at times, the appellant has alleged that the cartel bribed Human
Resources employees tasked with reviewing her applications. 0033 IAF, Tab 22 at 26;
0147 IAF, Tab 7 at 25, 152-53; PFR File, Tab 1 at 33-35.
8 A nonselection, including an agency’s failure to refer an applicant to the selecting
official, is a personnel action under the WPEA. 5 U.S.C. § 2302(a)(2)(A); Abernathy v.
Department of the Army , 2022 MSPB 37, ¶ 14. 12
The Board has held that personnel actions occurring within 1 to 2 years of the
protected disclosure or activity are sufficient to meet the timing prong of the
knowledge/timing test. Abernathy, 2022 MSPB 37, ¶ 15.
¶21In finding that the appellant failed to make nonfrivolous allegations of the
knowledge prong of the knowledge/test, the administrative judge reasoned that
Federal agencies are enormous institutions, so “emails to individuals like the
director of the agency do not show that specific employees involved with
day-to-day hiring for the various positions she applied for knew about her
disclosures.” ID at 9 n.9. We do not think it implausible that individuals in
positions such as Chief Operating Officer for the CDC, to whom the appellant has
allegedly made numerous disclosures, would communicate to lower-level HRO
employees that she should not be referred for Deputy Director positions, for
example. See 0033 IAF, Tab 22 at 25, 34-35; 0147 IAF, Tab 7 at 11, 21-22,
64-65. Moreover, the appellant has submitted argument and evidence suggesting
that lower-level HRO employees involved in processing her applications knew of
her status as a whistleblower: she has submitted several emails to CDC HRO
email addresses and/or HRO/Customer Support helpdesk tickets asserting her
status as a whistleblower and alleging retaliation. See, e.g., 0147 IAF, Tab 7
at 17, 57-58, 221, 225; see also PFR File, Tab 1 at 297-300, 307. Based on such,
we conclude that the appellant has made nonfrivolous allegations that individuals
involved in her nonselections had knowledge of the fact or content of her
whistleblower disclosures or activities. The appellant’s allegations of
nonselections for CDC positions within 1-2 years after these disclosures satisfies
the timing prong at the jurisdictional stage. 0147 IAF, Tab 4 at 20-24.
¶22Accordingly, we find that the appellant has nonfrivolously alleged that she
made at least one protected disclosure that was a contributing factor in at least
one covered personnel action. See Skarada, 2022 MSPB 17, ¶ 13. Thus, we find
that she has established jurisdiction over this IRA appeal and is entitled to a
hearing on the merits. Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(4).13
On remand, the administrative judge may adjudicate the merits of this appeal in
the order he deems most efficient, and our conclusion that the appellant has
presented nonfrivolous allegations regarding the existence of protected
disclosures, a personnel action, and causation in no way disposes of the merits of
those issues. See Kalil, 96 M.S.P.R. 77, ¶ 18 (2003).
ORDER
¶23For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Abreu_Velez_Ana_M_AT-1221-23-0147-W-1__Remand_Order.pdf | 2024-07-15 | ANA MARIA ABREU VELEZ v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. AT-1221-23-0147-W-1, July 15, 2024 | AT-1221-23-0147-W-1 | NP |
977 | https://www.mspb.gov/decisions/nonprecedential/Hays III_Russell_D_SF-0752-19-0213-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUSSELL D. HAYS, III,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-0752-19-0213-I-1
DATE: July 15, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven T. Haug , Meridian, Idaho, for the appellant.
Marcus Alonzo Mitchell , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary retirement appeal for lack of jurisdiction. On
petition for review, the appellant argues that the agency’s decision to reassign
him was a violation of merit system principles, the agency manipulated 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).
discovery process, the administrative judge relied on a document not in the
record, and the administrative judge was biased against him. Petition for Review
(PFR) File, Tab 1 at 4-6. He further reiterates his arguments below that his
retirement was based on misinformation and coercion. Id. at 4-5. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
On review, the appellant argues that the reassignment was a violation of
merit system principles because it “opens doors to discrimination and bias.” PFR
File, Tab 1 at 4. He did not raise this claim below, and thus it was not addressed
by the administrative judge. In any event, the Board lacks jurisdiction over a
claim that an agency violated merit systems principles absent an otherwise
appealable action. Solamon v. Department of Commerce , 119 M.S.P.R. 1, ¶ 14
(2012); PFR File, Tab 1 at 4. Because we agree with the administrative judge
that the appellant failed to establish jurisdiction over his alleged involuntary
retirement, we are without jurisdiction to address this claim.
The appellant claims on review that the agency manipulated the discovery
process by inadequately responding to his request for the documentation relied2
upon in the decision to reassign him. PFR File, Tab 1 at 4. We decline to
consider this argument because the appellant did not file a motion to compel a
response to this request below. See Szejner v. Office of Personnel Management ,
99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006). He further
claims that both the agency and the administrative judge improperly cited to and
relied upon a document not in the record.2 The administrative judge did not cite
to this document but, rather, found that the appellant’s supervisor testified
credibly about the rationale behind the appellant’s reassignment, which was based
in part on the contents of the document.3 IAF, Tab 29, Initial Decision at 8. The
appellant’s challenge to the inclusion of such testimonial information is not
properly preserved for Board review. See Hill v. Department of Health & Human
Services, 28 M.S.P.R. 91, 92 -93 (1985) (finding that an appellant’s failure to
object to the introduction of evidence at the hearing precluded her from raising it
on review). This finding is further bolstered by the fact that the appellant was
well-aware of the document and its contents at the time he retired. IAF, Tab 21
at 10, Tab 27, Hearing Compact Disc, Track 1 at 50:43 (testimony of the
appellant), Track 2 at 3:47 (testimony of the appellant’s supervisor).
Finally, the appellant alleges that the administrative judge was biased
against him. PFR File, Tab 1 at 5-6. As evidence of bias, he asserts that the
administrative judge held the hearing at the same location as the agency while the
appellant participated via video teleconference, and the administrative judge
exhibited friendliness with the agency that made him feel like an outsider. Id.
Specifically, the administrative judge allegedly discussed that she wanted to
2 The agency submitted the document in question after the pre-hearing submissions
were due. IAF, Tab 23. The appellant objected to its inclusion in the record, and the
administrative judge sustained his objection. IAF, Tab 24, Tab 26 at 2.
3 The document in question was a work environment assessment of a unit that the
appellant managed, the Lassen National Forest. IAF, Tab 23. The appellant’s
supervisor further testified that he personally visited the forest to get a firsthand
account of how the staff felt about the appellant’s leadership. IAF, Tab 27, Hearing
Compact Disc, Track 2 at 3:55 (testimony of the appellant’s supervisor).3
conclude the appellant’s testimony and end the hearing prior to lunch, and sought
advice regarding where to eat. Id. at 6. A party alleging bias by an
administrative judge must overcome the presumption of honesty and integrity
accompanying administrative adjudicators. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 19 (2016). 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. Id.
Here, the administrative judge made arrangements for the appellant to
participate via video conference because he had relocated to Boise, Idaho. IAF,
Tab 15 at 3. The administrative judge provided the parties with an opportunity to
object to her order in which she discussed these arrangements. Id. at 3-4.
Although the appellant expressed concerns regarding portions of the order, he did
not raise a concern about the video conference arrangement. IAF, Tab 16. As
such, the appellant has failed to demonstrate any actions or conduct by the
administrative judge which would overcome the presumption of her honesty and
integrity. The alleged “friendly” conversations between the administrative judge
and the agency’s representative regarding when to break for lunch and local
dining options do not evidence a deep-seated favoritism or antagonism. PFR File,
Tab 1 at 6; see Scoggins, 123 M.S.P.R. 592, ¶ 19.
The appellant further asserts that the administrative judge’s decision not to
impose sanctions against the agency for violating her own order shows bias for
the agency and against him. PFR File, Tab 1 at 5-6 . The Board will not
ordinarily disturb an administrative judge’s determination as to whether to impose
a sanction unless it is shown that she abused her discretion or that her erroneous
ruling adversely affected a party’s rights. Simon v. Department of Commerce ,
111 M.S.P.R. 381, ¶ 11 (2009). Here, the appellant filed a motion for sanctions,
asserting that the agency failed to have an official with settlement authority
readily available during the status conference, in violation of the administrative4
judge’s order. IAF, Tab 14 at 2, Tab 16 at 4. The administrative judge denied the
motion as it failed to serve the ends of justice. IAF, Tab 17 at 1. The appellant
has provided no information that the administrative judge abused her discretion in
declining to impose sanctions, and thus has failed to demonstrate that she was
biased against him.
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 | Hays III_Russell_D_SF-0752-19-0213-I-1__Final_Order.pdf | 2024-07-15 | null | SF-0752-19-0213-I-1 | NP |
978 | https://www.mspb.gov/decisions/nonprecedential/Wen_AiminAT-315H-20-0350-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AIMIN WEN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
AT-315H-20-0350-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aimin Wen , Warner Robins, Georgia, pro se.
Lauren M. Goodall , Beltsville, 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 her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant reasserts her claim from below that her
termination was motivated by discrimination on the basis of her marital 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).
restates her challenge to the underlying basis for her termination, and argues that
she was discriminated against on the basis of her age and national origin. Petition
for Review (PFR) File, Tab 1 at 3-4. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that, as an individual serving in her probationary period,
she was an “employee” with Board appeal rights under chapter 75, as defined by
5 U.S.C. § 7511(a)(1)(A). Initial Appeal File (IAF), Tab 7, Initial Decision (ID)
at 4. He also correctly found that the appellant failed to nonfrivolously allege
Board jurisdiction over her probationary termination appeal under the relevant
regulatory provisions set forth in 5 C.F.R. §§ 315.805-806. Id. Although the
appellant reiterates her claim on review that her termination was the result of
discrimination based on her marital status, PFR File, Tab 1 at 3, thereby
potentially invoking jurisdiction under 5 C.F.R. § 315.806(b), we agree with the
administrative judge that her bare assertion of discrimination on that basis is
insufficient to rise to the level of a nonfrivolous allegation of jurisdiction,
ID at 4. 2
Regarding the appellant’s argument on review concerning discrimination
on the basis of age and national origin, PFR File, Tab 1 at 3, she did not raise
these arguments below, IAF, Tabs 1, 5. The Board generally will not consider an
argument raised for the first time on review absent a showing that it is based on
new and material evidence 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).
The appellant has not asserted that these allegations are based on new and
material evidence, nor has she explained why she could not raise them below.
PFR File, Tab 1 at 3. Even if the appellant had raised this argument below,
however, the Board nonetheless cannot consider these claims absent jurisdiction
over an otherwise appealable action.2 See Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012) (stating that, absent an otherwise appealable
action, the Board lacked jurisdiction to consider the appellant’s claims of
discrimination on the bases of his disability and age).
Additionally, the appellant submits with her petition for review a
performance appraisal, a performance plan narrative, and a document evidencing
a performance award. PFR File, Tab 1 at 5-9. These documents do not appear to
have been submitted into the record below. IAF, Tabs 1, 5. Generally, the Board
will not consider evidence submitted for the first time with a petition for review
absent a showing that it was unavailable before the record closed before the
administrative judge despite the party’s due diligence. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980). Here, the documents are dated,
at the latest, October 2019. PFR File, Tab 1 at 5-9. The appellant did not file her
initial appeal until March 6, 2020. IAF, Tab 1. Thus, the documents submitted
on review were available below before the record closed, and the appellant has
2 Similarly, the appellant continues to argue the merits of her probationary termination
on review. PFR File, Tab 1 at 3-4. The Board has held that the appellant’s arguments
concerning the merits of her appeal were not relevant to the question of jurisdiction,
see Sapla v. Department of the Navy , 118 M.S.P.R. 551, ¶ 7 (2012), and thus, these
claims are not relevant to our review. 3
not explained why she was unable to submit them then. PFR File, Tab 1 at 3-4.
Moreover, she has not explained how any of the documents are of sufficient
weight to warrant an outcome different than that of the initial decision, and thus,
they do not provide a basis to grant the petition for review. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . 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.4
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Wen_AiminAT-315H-20-0350-I-1__Final_Order.pdf | 2024-07-12 | AIMIN WEN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. AT-315H-20-0350-I-1, July 12, 2024 | AT-315H-20-0350-I-1 | NP |
979 | https://www.mspb.gov/decisions/nonprecedential/England_Tracy_D_DC-0752-18-0464-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY DEWAYNE ENGLAND,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-18-0464-I-2
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dionna Maria Lewis , Esquire, Washington, D.C., for the appellant.
Richard Saviet , Esquire, and Troy Richard Holroyd , Esquire, Fort Belvoir,
Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal for a positive drug test. 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 in paragraph 11 below regarding the appellant’s claim of inadvertent
ingestion and paragraph 13 below regarding the appellant’s claim of retaliation
for equal employment opportunity (EEO) activity, we AFFIRM the initial
decision.
BACKGROUND
¶2The appellant was a GS-12 Inventory Management Specialist for the
agency. England v. Department of Defense , MSPB Docket No. DC-0752-18-
0464-I-1, Initial Appeal File (IAF), Tab 10 at 21. Inventory Management
Specialist is a “testing designated position,” meaning that incumbents are required
to undergo periodic unannounced urinalysis to screen for illegal drug use. IAF,
Tab 11 at 42.
¶3In August 2017, the appellant tested positive for marijuana in a random
drug test. Id. at 48. He served a 15-day suspension for that offense in
December 2017 and completed an agency-recommended drug treatment program.2
Id. at 44-48. The agency notified the appellant that he would be subject to
follow-up drug testing throughout 2018 and that failure to pass any drug test
2 The appellant appealed that suspension to the Board. The administrative judge issued
an initial decision sustaining the suspension, and the appellant did not petition for
review. England v. Department of Defense , MSPB Docket No. DC-0752-18-0242-I-3.2
during that period would result in a proposed removal. Id. at 48. These events
were not long in coming.
¶4On January 30, 2018, the appellant produced a urine sample that tested
positive for cocaine. IAF, Tab 11 at 49-51, Tab 15 at 5-8. When notified of the
results, the appellant responded that he had not used cocaine. Rather, he
attributed the results to his consumption of Delisse brand cocoa tea, which he
claimed had been given to him by a friend to relieve his cold and flu symptoms.
IAF, Tab 15 at 9-12. Nevertheless, the agency proposed the appellant’s removal
based on a charge of “Illegal Drug Use – Second Offense.” Id. at 17-19. The
appellant responded, again claiming that he tested positive because he had
consumed Delisse tea. Id. at 20-21. The deciding official issued a decision
removing the appellant effective April 20, 2018. IAF, Tab 10 at 21, Tab 18
at 28-31.
¶5The appellant filed the instant Board appeal, raising affirmative defenses of
race discrimination, sex discrimination, harmful procedural error, retaliation for
EEO activity, and retaliation for filing a prior Board appeal of his suspension.
IAF, Tab 1, Tab 37 at 3-4. After a hearing, the administrative judge issued an
initial decision sustaining the removal. England v. Department of Defense , MSPB
Docket No. DC-0752-18-0464-I-2, Appeal File, Tab 8, Initial Decision (ID). He
found that the charge was essentially undisputed, and he did not credit the
appellant’s testimony that the positive test results were due to the consumption of
Delisse tea. ID at 7-12. The administrative judge further found that the appellant
failed to prove his affirmative defenses. ID at 12-14.
¶6The appellant has filed a petition for review, disputing the administrative
judge’s findings on the penalty and his affirmative defenses. Petition for Review
(PFR) File, Tab 3. The agency has filed a response. PFR File, Tab 6.3
ANALYSIS
¶7In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service. MacDonald v. Department
of the Navy, 4 M.S.P.R. 403, 404 (1980); see 5 U.S.C. § 1201.56(b)(1)(ii). To
meet this burden, the agency must prove its charge, establish a nexus between the
charge and the efficiency of the service, and demonstrate that the penalty imposed
was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir.
1997). However, even if the agency carries this burden, the removal may not be
sustained if the appellant shows that it was the product of harmful procedural
error or was based on a prohibited personnel practice described in 5 U.S.C.
§ 2302(b). 5 U.S.C § 7701(c)(2)(A)-(B); 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)
(1)-(2).
¶8In this case, the administrative judge found that the agency proved its
charge of “Illegal Drug Use – Second Offense.” ID at 7. The appellant does not
challenge this finding on review, and for the reasons explained in the initial
decision, we agree with the administrative judge. Likewise, the appellant does
not challenge the administrative judge’s finding on nexus, and for the reasons
explained in the initial decision, we agree with the administrative judge that the
agency met its burden on that issue as well. ID at 8.
¶9The appellant does, however, challenge the administrative judge’s finding
on the issue of penalty, particularly with regard to his claim that his consumption
of cocaine was unintentional. PFR File, Tab 3 at 13-14, 16; ID at 8-12. An
appellant who attributes a positive drug test to accidental ingestion bears the
burden of coming forward with sufficient evidence to support his assertion.
Hansen v. Department of Homeland Security , 911 F.3d 1362, 1368 (Fed. Cir.
2018). The administrative judge declined to credit the appellant’s claim for two
reasons. First, he noted that the appellant had also claimed accidental ingestion
in his suspension appeal, and he found it inherently unlikely that the appellant4
“would have inadvertently tested positive for illegal drug use, for two different
drugs, on two separate occasions within a 5-month period.” ID at 9-19. Second,
he found that the appellant’s only source of corroboration was the testimony of
his wife and that this testimony varied significantly from the chronology of events
documented elsewhere in the record. ID at 9, 11-12. Specifically, he found that
the appellant’s wife testified that it took him 2 weeks to realize that the Delisse
tea was the source of the positive test results whereas the written record showed
that the appellant proffered this explanation the same day that he received the
results. ID at 11-12.
¶10On petition for review, the appellant acknowledges that the administrative
judge “expressed concerns regarding the chronology of events” proffered by his
wife, but he argues that the administrative judge failed to consider that his wife
was recovering from major surgery on the day of the hearing. PFR File, Tab 3
at 13-14. To the extent that the appellant is arguing that his wife was having
difficulty recalling events at the hearing, we are unpersuaded. We have reviewed
the testimony at issue and find nothing in it to suggest that the appellant’s wife
was having difficulty recalling details. Hearing Compact Disc at 50:10
(testimony of the appellant’s wife). Rather, the discrepancy is between the
detailed accounting in that testimony and the documentary evidence, as the
administrative judge accurately described. ID at 11-12. The appellant also
argues that administrative judge failed to consider his wife’s medical condition,
the fact that he was her caregiver, and the recent death of his father. To the
extent that the appellant is arguing that these circumstances themselves constitute
mitigating factors for cocaine use, this would seem to be at odds with his claim of
accidental ingestion. Difficult personal circumstances can constitute mitigating
factors, but only if there is a reasoned explanation connecting those circumstances
with the charged misconduct. Wynne v. Department of Veterans Affairs ,
75 M.S.P.R. 127, 136 (1997); Barry v. Department of the Treasury , 71 M.S.P.R.
283, 287 (1996). To the extent that the appellant is asserting that these5
circumstances put him in the “mindset to live a healthy lifestyle” and consume
various herbal products that resulted in positive drug tests, we find that this
connection is tenuous at best, and we remain unconvinced of the appellant’s
explanation.3 PFR File, Tab 3 at 14.
¶11To the extent that the administrative judge found that corroborating
evidence is absolutely required to show accidental ingestion, we modify the initial
decision. ID at 10, 12. The administrative judge observed that the Board has
accepted claims of accidental ingestion when corroborating evidence was present,
Torres v. Department of Justice , 343 F. App’x 610, 613 (Fed. Cir. 2009);
McNeil v. Department of Justice , 117 M.S.P.R. 533, ¶¶ 9-11 (2012); Johnson v.
Department of the Air Force , MSPB Docket No. DE-0752-14-0091-I-2, Final
Order, ¶¶ 5, 8-11 (Apr. 2, 2015), and rejected such claims when corroborating
evidence was absent, Hansen, 911 F.3d at 1367-69; ID at 12. The administrative
judge’s assessment of the existing case law was accurate, but we do not endorse a
generalization of that case law to find that corroboration must be present in every
circumstance. We hold open the possibility that, under the facts of some future
case, an appellant’s credible testimony alone may suffice to support a claim of
accidental ingestion. Nevertheless, even absent a per se corroboration
requirement, “the contradiction of the witness’s version of events by other
evidence or its consistency with other evidence” remains a valid credibility factor
in all cases. Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). In
other words, it is appropriate for an administrative judge to consider
corroborating evidence or lack thereof as part of his overall credibility assessment
under a totality of the circumstances approach. In this case, the credibility of the
appellant’s accidental ingestion claim was undercut not merely by his failure to
3 The appellant states that the agency’s medical review officer confirmed that the results
of the drug test were due to accidental ingestion. PFR File, Tab 3 at 12. This is
inaccurate. The medical review officer’s report recounts the appellant’s explanation for
the positive test result, but it states that the appellant’s explanation does not rule out
cocaine use. IAF, Tab 15 at 8. 6
present credible corroborating evidence, but also by his attempt to corroborate his
account with evidence that was affirmatively inconsistent with the record.
Coupled with the inherent improbability of the appellant’s version of events and
in light of the deference owed to the credibility determinations made by the
administrative judge after an in-person hearing, see Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002), we find insufficient basis to
disturb the administrative judge’s findings on this issue. We therefore affirm as
modified the administrative judge’s conclusion that the appellant failed to make a
credible showing of accidental ingestion.
¶12On petition for review, the appellant renews his claims of race and sex
discrimination. PFR File, Tab 3 at 6-8, 16-17. To establish a claim of race or sex
discrimination, an appellant must show that the prohibited consideration was at
least a motivating factor in the personnel action at issue. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22. In this case, the appellant
argues that, when he, an African American male, applied for a promotion, his
supervisor (the proposing official in his removal) cancelled the vacancy
announcement, waited until a Caucasian female coworker became eligible to
apply, and then selected her instead. PFR File, Tab 3 at 6-8, 16-17. The
appellant also argues that the agency scrutinized him more closely than it did his
female colleagues and that his supervisor improperly denied him training and
education opportunities. Id. At 15-17. However, we agree with the
administrative judge that these matters are unrelated to the removal action, and
we find insufficient basis to draw any discriminatory inference from them. ID
at 14. The appellant has not identified any evidence that would show that the
female employees who were allegedly less scrutinized were similarly situated to
him. See Bruce v. Department of Transportation , 17 M.S.P.R. 153, 155 (1983),
aff’d, 802 F.2d 469 (Fed. Cir. 1986) (Table). Furthermore, even assuming that
the agency improperly denied the appellant training and favored the appellant’s
Caucasian female coworker in its promotion decision, there is no reason to7
believe that these actions were motivated by race or sex discrimination. See
Lewin v. Department of Justice , 74 M.S.P.R. 294, 298-99 (1997). Considering the
evidence as a whole, including the undisputed evidence supporting the charge, we
affirm the administrative judge’s finding that the appellant did not prove that
either race discrimination or sex discrimination was a motivating factor in his
removal.
¶13The appellant also renews his claim of retaliation for prior EEO activity.
PFR File, Tab 3 at 8-10. The administrative judge did not explicitly address this
claim in his initial decision, so we address it here. See Spithaler v. Office of
Personnel Management , 1 M.S.P.R. 587, 589 (1980). A claim of retaliation for
Title VII EEO activity is governed by the same standard as claims of race and sex
discrimination, i.e., the appellant must show that the prohibited consideration was
at least a motivating factor in the personnel action at issue. Pridgen, 2022 MSPB
31, ¶ 30. In determining whether prior EEO activity was a motivating factor in an
adverse action, the Board will consider the evidence as a whole, including
comparator evidence, retaliatory motive, evidence of pretext, comments or
admissions by agency officials, and any other evidence that it finds pertinent. See
Id., ¶ 24. The appellant argues on review that his supervisor knew that he had
engaged in EEO activity with respect to the promotion situation discussed above
and with respect to allegations of a hostile work environment.4 However, even
taking this assertion as true, the mere fact that the appellant’s supervisor knew
about the appellant’s prior EEO activity is insufficient to show that the removal
was retaliatory, especially considering the strong evidence supporting the
agency’s action. Cf. Brasch v. Department of Transportation , 101 M.S.P.R. 145,
¶ 13 (2006) (finding that the responsible officials’ knowledge of the appellant’s
protected activity was itself insufficient to show that the protected activity was a
motivating factor). The appellant has identified no other evidence in the record
4 It is not clear whether the same EEO activity encompassed both of these matters. 8
that might support his claim, and we find that he has not shown that his prior EEO
activity was a motivating factor in his removal.
¶14Finally, the appellant makes some arguments pertaining to his claim of
harmful procedural error. To demonstrate that an agency committed harmful
procedural error, an appellant must show both that the agency committed
procedural error and that the error was harmful. Parker v. Defense Logistics
Agency, 1 M.S.P.R. 505, 513 (1980). Harmful error cannot be presumed; an
agency error is harmful only where the record shows that the procedural error was
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
¶15The appellant argues that he was selected far more often for random drug
testing than mere chance would allow and that the agency was using the program
to harass and target him. PFR File, Tab 3 at 11-12, 16. The appellant has not
identified sufficient evidence to support this argument, and we find that he has
not shown that the agency committed any procedural error in this regard. The
appellant also argues that the administrative judge applied laws that did not
account for various agency rules and the Office of Personnel Management
guidance, but he has not explained specifically how these various provisions
pertain to the removal action at issue or how applying them would result in a
different outcome for this appeal. Id. at 15. Finally, the appellant argues that the
agency’s drug testing policy allows only 2 hours’ advance notice and that the
administrative judge incorrectly found that the agency gave the appellant 1 day’s
notice. Id. at 10-11. To the extent that this argument is related to the appellant’s
affirmative defense of harmful procedural error, we find that the appellant has not
shown that the agency violated any policy or that any such violation may have
affected his substantive rights.9
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any11
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s12
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | England_Tracy_D_DC-0752-18-0464-I-2__Final_Order.pdf | 2024-07-12 | TRACY DEWAYNE ENGLAND v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0464-I-2, July 12, 2024 | DC-0752-18-0464-I-2 | NP |
980 | https://www.mspb.gov/decisions/nonprecedential/Bradbury_David_M_DA-0752-23-0012-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID BRADBURY,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-23-0012-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Beverlei E. Colston , Esquire, Irving, 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
upheld his removal based on a sustained charge of conduct unbecoming a Federal
law enforcement officer. On petition for review, the appellant challenges the
administrative judge’s decision to sustain both specifications and the charge 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).
her assessment of the penalty. 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. Except as expressly MODIFIED to supplement the administrative
judge’s penalty analysis , we AFFIRM the initial decision.
¶2We have considered the appellant’s arguments on review, but none warrants
a different outcome. For example, we are not persuaded by the appellant’s effort
to characterize specification 1 as an allegation of failure to follow instructions,
instead of conduct unbecoming. Id. at 7-11. We acknowledge that the
administrative judge did not make any explicit credibility determinations on
whether the appellant heard the Assistant Special Agent in Charge’s (ASAC’s)
instruction to stop, id. at 9-10, but she later found that the appellant
“disregard[ed]” the ASAC’s instructions in this regard, Initial Appeal File (IAF),
Tab 30, Initial Decision (ID) at 10. Where, as here, an administrative judge has
heard live testimony, her credibility determinations must be deemed to be at least
implicitly based upon the demeanor of the witnesses. Little v. Department of
Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). Moreover, 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 a2
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 identified such
reasons. Ultimately, the appellant has not persuaded us that the administrative
judge erred when she found that the appellant’s conduct during and after the
October 20, 2021 meeting constituted conduct unbecoming a Federal law
enforcement officer. We find that she correctly sustained specification 1.
¶3The appellant does not appear to challenge the administrative judge’s
substantive findings regarding specification 2, and we affirm the initial decision
in this regard. We also affirm the administrative judge’s decision to sustain the
conduct unbecoming charge.
¶4We have also considered the appellant’s arguments regarding the penalty.
For example, the appellant asserts that the administrative judge must
independently assess the relevant penalty factors to determine whether the penalty
imposed was reasonable. PFR File, Tab 3 at 17-19. Contrary to the appellant’s
assertion, the administrative judge reviewed the deciding official’s evaluation of
the penalty factors and then conducted her own assessment of many relevant
factors. ID at 15-16.
¶5Additionally, the appellant argues that the administrative judge erred when
she relied on the appellant’s lack of remorse as undermining his rehabilitative
potential. PFR File, Tab 3 at 19-20. He cites to Raco v. Social Security
Administration, 117 M.S.P.R. 1, ¶ 16 (2011), for the proposition that an
appellant’s decision to defend himself against an agency’s charges does not
indicate that he lacked remorse or failed to admit to wrongdoing. PFR File, Tab 3
at 19-20. The appellant mischaracterizes the administrative judge’s findings.
Importantly, the administrative judge did not find that the appellant’s pursuit of
this appeal evidenced a lack of rehabilitative potential. Rather, she found that he
lacked rehabilitative potential because of, among other things, his lack of3
remorse, continued justification of his actions,2 and failure to display
professionalism despite being on notice that the agency’s code of conduct
required it. ID at 16. Importantly, we agree with the administrative judge that
the appellant’s testimony that he thought the email described in specification 2
was “respectful,” and he did not see a “problem” with the “professionalism” of
the email, suggests that he is apt to repeat it and shows a lack of rehabilitative
potential. Id.
¶6The appellant correctly notes that the administrative judge did not explicitly
discuss the adequacy and effectiveness of alternative sanctions.3 PFR File, Tab 3
at 18-19. We supplement the initial decision to explicitly consider this factor.
However, given the temporal proximity of the June 2021 Letter of Counseling,
which was based on similar allegations of unprofessionalism described in
specification 2, coupled with the evidence that the administrative judge discussed
in her analysis of the appellant’s potential for rehabilitation, there remains a
question as to whether a penalty less than removal would work as a deterrent.
¶7We have also considered mitigating factors. As discussed in the initial
decision, the appellant did not have any prior discipline, he had nearly 20 years of
Federal service, and he had high performance ratings. ID at 14; IAF, Tab 7
at 32-33. Additionally, we have considered, as a mitigating factor, the
circumstances surrounding the incidents described in specifications 1 and 2,
which could fall under the heading of unusual job tensions. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981). For example, the administrative
judge acknowledged that the appellant was “shaken by the circumstances” during
the meeting. ID at 11. Regarding specification 2, the administrative judge noted
that the appellant was “extreme[ly] frustrat[ed]” with being the subject of an
investigation that was ultimately unsupported, and he sent the December 17, 2021
2 The administrative judge noted that the appellant blamed his frustration on a
later-unsupported investigation, office rumors, and an attempt to clear his name. ID
at 16.
3 The deciding official discussed this factor. IAF, Tab 7 at 35.4
email because he “felt his complaints and concerns had been ignored,” he felt
“humiliated,” and he wanted to “clear his name among his peers.” ID at 16. We
have also considered that the appellant’s conduct, which the administrative judge
found caused the agency officials to fear for their safety and the safety of others
in the room during the October 20, 2021 meeting, lasted only a few seconds. PFR
File, Tab 3 at 16. Finally, we have considered as a mitigating factor the
administrative judge’s decision to credit the appellant’s testimony that he did not
mean the “grinders” comment in his email as a threat. ID at 12; PFR File, Tab 3
at 15.
¶8However, when evaluating whether a penalty is reasonable, the Board
considers, first and foremost, the nature and seriousness of the misconduct and its
relation to the employee’s duties, position, and responsibilities. Jackson
v. Department of the Army , 99 M.S.P.R. 604, ¶ 6 (2005). Conduct unbecoming is
a serious charge. Hellein v. Department of Agriculture , 8 M.S.P.R. 373, 375
(1981). The Board has long recognized that a higher standard of conduct and
degree of trust are required of an incumbent of a position with law enforcement
duties, such as the appellant. Luongo v. Department of Justice , 95 M.S.P.R. 643,
¶ 13 (2004) aff’d, 123 F. App’x 405 (Fed. Cir. 2005); Cantu v. Department of the
Treasury, 88 M.S.P.R. 253, ¶ 8 (2001). Although there are several mitigating
factors in this case, there are also significant aggravating factors. We believe that
the aggravating factors outweigh the mitigating factors, and we discern no error
with the administrative judge’s finding that the removal penalty was reasonable
for the sustained misconduct.5
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Bradbury_David_M_DA-0752-23-0012-I-1__Final_Order.pdf | 2024-07-12 | DAVID BRADBURY v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-23-0012-I-1, July 12, 2024 | DA-0752-23-0012-I-1 | NP |
981 | https://www.mspb.gov/decisions/nonprecedential/East_RussellDC-0752-19-0484-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUSSELL EAST,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-19-0484-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheri L. Cannon , Esquire, Washington, D.C., for the appellant.
Lorna J. Jerome , Esquire, and Edith Moore McGee , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s chapter 75 removal action. On petition for review, the
appellant alleges the following: (1) the agency failed to prove certain enumerated
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
specifications of its charges of failure to follow supervisory instructions and
absence without leave; (2) the agency’s Douglas factors2 analysis was legally
insufficient; (3) the agency failed to implement progressive discipline; (4) the
administrative judge made erroneous credibility determinations; and (5) the
administrative judge exhibited bias. Petition for Review (PFR) File, Tab 3
at 5-26. 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
(1) to VACATE the administrative judge’s alternative findings regarding the
appellant’s claim of whistleblower retaliation and (2) to clarify the legal standard
applicable to the appellant’s claim of reprisal for protected equal employment
opportunity (EEO) activity and to VACATE the administrative judge’s alternative
findings regarding the same, we AFFIRM the initial decision.
The appellant contends that the agency failed to prove certain enumerated
specifications of its charges and failed to conduct a legally sufficient Douglas
factors analysis. PFR File, Tab 3 at 8-19. Having considered the appellant’s
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.2
assertions, we find no basis to disturb the administrative judge’s reasoned
findings on these issues.
The appellant avers that the agency failed to implement progressive
discipline. Id. at 19-22. To this end, he asserts that the “total absence of any
discipline, counseling or warning in the instant matter” violated agency policy,
i.e., Commandant Instruction (COMTINST) M12750.4A,3 which includes, among
other things, the agency’s table of penalties. Id. at 19-20, 22. Contrary to the
appellant’s assertions otherwise, we find that the appellant’s removal was
consistent with the agency’s table of penalties. Initial Appeal File (IAF), Tab 4
at 101. Indeed, the agency’s table of penalties sets forth a suggested penalty
range of “5-day suspension to removal” for a first offense of “[w]illful or
intentional delay or refusal to comply with an order, direction, instruction, or
assignment of a supervisor or other management official.” Id. The appellant
“openly admit[ted] that [he] made a conscious decision to not follow the
instructions of [his] supervisor.” Id. at 19; ID at 19, 29. He also committed
AWOL offenses on three occasions. ID at 23-25. Moreover, COMTINST
M12750.4A provides that the table is “intended only to assist” management and
does not “create any rights, administrative or judicial, whether substantive or
procedural, which can be enforced against the [agency].” COMTINST
M12750.4A at 46; see Farrell v. Department of the Interior , 314 F.3d 584,
590-92 (Fed. Cir. 2002) (concluding that an agency’s table of penalties is merely
an advisory guide that is not binding on the agency absent a specific statement
making it so). In these circumstances, we find that the appellant’s arguments
regarding progressive discipline do not warrant a different outcome.
The appellant asserts that the administrative judge made erroneous
credibility determinations. PFR File, Tab 3 at 22-26. To this end, he avers that
the administrative judge failed to “articulate a specific demeanor-based reason”
3 https://media.defense.gov/2017/Mar/29/2001723623/-1/-1/0/CIM_12750_4A.PDF (last
visited July 12, 2024). The agency also provided a portion of COMTINST M12750.4A
with its appeal file. Initial Appeal File, Tab 4 at 96-103, Tab 5 at 4-10.3
for finding the agency’s witnesses more credible than him. Id. at 24. The Board
must give deference to the administrative judge’s credibility determinations when
such conclusions 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 to do so. Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the
administrative judge reviewed the totality of the testimonial evidence and he cited
applicable Board case law in setting forth his reasoned credibility determinations.
E.g., IAF, Tab 35, Initial Decision (ID) at 4 n.6 (citing Hillen v. Department of
the Army, 35 M.S.P.R. 453, 458 (1987)). The appellant’s broad allegations of
error do not provide a basis to disturb his findings. See Broughton v. Department
of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (finding no reason to
disturb the administrative judge’s conclusions because the initial decision
indicated that she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility).
The appellant alleges bias on part of the administrative judge. PFR File,
Tab 3 at 11 n.6, 24-25. To this end, he contends that the initial decision
“demonstrate[ed] a refrain throughout the opinion: [the administrative judge’s]
biased (and baseless) interpretation of the facts.” Id. at 11 n.6. He also contends
that the administrative judge “repeatedly demonstrated clear bias” during the
hearing, to include asking the appellant improper questions, mischaracterizing his
testimony, and overlooking “glaring inconsistencies” in the testimony of other
witnesses. Id. at 24-25. 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). An administrative judge’s conduct during4
the course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions indicate a deep-seated favoritism or
antagonism that would render fair judgment impossible. Simpkins v. Office of
Personnel Management , 113 M.S.P.R. 411, ¶ 5 (2010).
Here, the record, to include the hearing transcript, is devoid of any
indication of personal bias. See Williams, 87 M.S.P.R. 313, ¶ 12 (stating that the
Board will not infer bias based on an administrative judge’s rulings on issues).
Indeed, we find that the administrative judge’s credibility determinations were
supported by the documentary and testimonial evidence in the record. See
Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 29 (2015) (finding
unavailing the agency’s argument that the administrative judge’s credibility
determinations lacked a factual basis and therefore must have been the product of
anti-agency bias when the administrative judge’s credibility determinations had
adequate factual underpinning). Thus, the appellant’s unsubstantiated allegations
are insufficient to rebut the presumption of the administrative judge’s honesty and
integrity. PFR File, Tab 3 at 11 n.6, 24-25; see Washington , 81 M.S.P.R. 101,
¶ 7.
We modify the initial decision to vacate the administrative judge’s alternative
findings regarding whistleblower retaliation.
The appellant does not raise any arguments regarding his affirmative
defense of whistleblower retaliation on review, and we discern no material error
in the administrative judge’s conclusion that the appellant failed to prove the
same by preponderant evidence. ID at 27-30. The administrative judge found,
based on reasoned credibility determinations, that the appellant had failed to
show that his protected activity “contributed in any way” to the adverse action.
ID at 28-29. We discern no basis to disturb this finding. See Haebe, 288 F.3d
at 1301. Despite so finding, however, the administrative judge thereafter
concluded in the alternative that, even if the appellant had established that his
protected activity was a contributing factor in the agency’s decision, the agency5
nonetheless proved by clear and convincing evidence “that it would have removed
the appellant in the absence of this improper motive.” ID at 29. Because the
appellant failed to establish a prima facie case of whistleblower reprisal, we do
not proceed to the clear and convincing evidence test, and we vacate this
alternative finding. See 5 U.S.C. § 1221(e)(2); see Clarke v. Department of
Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016
(Fed. Cir. 2015).
We modify the initial decision to clarify the legal standard applicable to the
appellant’s claim of EEO reprisal and to vacate the administrative judge’s
alternative findings regarding the same.
Here, the administrative judge analyzed the appellant’s claim of EEO
reprisal using the legal framework set forth in Savage v. Department of the Army ,
122 M.S.P.R. 612, ¶ 51 (2015), overruled in part on other grounds by Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 25. ID at 25-27. According
to Savage, the Board first inquires whether the appellant has shown by
preponderant evidence that the prohibited consideration was a motivating factor
in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. If so, the
next inquiry is whether the agency has shown by preponderant evidence that it
would have taken the action absent the discriminatory or retaliatory motive. Id.
If the agency makes such a showing, the Board will not reverse the contested
personnel action. Id. Applying this framework, the administrative judge
concluded that the appellant “failed to demonstrate that his EEO -related activity
was a motivating factor in the agency’s removal action.” ID at 27. He then
concluded in the alternative that, “even assuming arguendo that the appellant
could establish that EEO activity was a motivating factor in the removal action,
he is not entitled to corrective action because the agency proved by overwhelming
evidence that it would have taken the same action in the absence of any
retaliatory motive.” Id.6
The appellant’s EEO complaint alleged both disability discrimination and
race discrimination. IAF, Tab 15 at 92, Tab 18 at 149-52. The administrative
judge properly applied the motivating factor standard set forth in Savage to the
appellant’s claims of reprisal for activities protected under Title VII, i.e., his
claims alleging discrimination based on his race. See Savage, 122 M.S.P.R. 612,
¶ 51. We discern no basis to disturb the administrative judge’s conclusion that
his activity protected under Title VII was not a motivating factor in his removal.
ID at 27. Because the appellant’s Title VII claims fail on this basis, we do not
reach the question of “but for” causation, and we vacate the administrative
judge’s alternative findings in this regard. See id.
The appellant’s claims alleging retaliation regarding his complaints of
disability discrimination are not protected by Title VII but rather are protected
under the Rehabilitation Act of 1973, which incorporates by reference the anti-
retaliation provision of the Americans with Disabilities Act of 1990. See Pridgen
v. Office of Management and Budget , 2022 MSPB 31, ¶ 44. Subsequent to the
initial decision, the Board clarified that a more stringent standard should be
applied to such claims of retaliation. Id., ¶¶ 45-47. Under Pridgen, the appellant
bears the burden of proving “but for” causation, and the burden never shifts to the
agency. Id. Here, however, insofar as we discern no basis to disturb the
administrative judge’s conclusion that the appellant’s EEO -related activity was
not a motivating factor in his removal, the appellant necessarily fails to satisfy
the more stringent legal standard set forth in Pridgen. ID at 27; see Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 9 (2016).
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
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular8
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 9
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of10
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. 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 | East_RussellDC-0752-19-0484-I-1__Final_Order.pdf | 2024-07-12 | RUSSELL EAST v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-19-0484-I-1, July 12, 2024 | DC-0752-19-0484-I-1 | NP |
982 | https://www.mspb.gov/decisions/nonprecedential/Maldonado_CelsoPH-0752-18-0318-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CELSO MALDONADO,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
PH-0752-18-0318-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Poulos, Jr. , Hamilton, New Jersey, 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
The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 correct and supplement some of the administrative judge’s
statements in his analysis of the failure to satisfy a condition of employment
charge, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a GS-06 Police Officer at Joint Base
McGuire-Dix-Lakehurst, New Jersey (JBMDL). Initial Appeal File (IAF), Tab 6
at 54. On May 11, 2011, the appellant broke his right fibula during a training
exercise. Id. at 95. The appellant’s injury required the surgical insertion of a
metal plate and 10 screws in his leg. Id.; IAF, Tab 8 at 38. Sometime thereafter,
the agency and a union representing civilian police officers began bargaining for
the implementation of the Physical Agility Test (PAT) for civilian police officers
at JBMDL. The agency ultimately reached an agreement with the union that the
PAT was a condition of employment, and it was documented in the appellant’s
position description and the agency’s regulations. IAF, Tab 7 at 25-27, 47 -48,
59-61, 79-82, 97. The PAT includes, among other things, a 1.5 mile run to be
completed in 16 minutes, 17 seconds. Id. at 82.
On June 14, 2017, the appellant underwent a fitness-for-duty examination.
IAF, Tab 10 at 27-34. The examining physician assistant, J.R., did not clear the2
appellant for the 1.5 mile run due to his leg injury. Id. at 33. J.R. determined
that the appellant was medically qualified for his position, but she noted that he
had a restriction of running no more than 100 yards (300 feet) at a given time. Id.
at 34. Because the appellant requested that the agency grant him a waiver of the
1.5 mile run component of the PAT, IAF, Tab 6 at 104-05, Tab 7 at 5, J.R.
reassessed the appellant in November 2017, and cleared him for duty with no
restrictions, IAF, Tab 6 at 94-101. Because the results were inconsistent,2 the
appellant underwent another fitness-for-duty examination on December 6, 2017.
IAF, Tab 12 at 5-6, Tab 19 at 58-59. The examining physician, S.C., determined
that the appellant was not medically qualified for his position due to his limiting
condition of running no more than 100 yards at a given time; thus, she did not
clear him for the 1.5 mile run. IAF, Tab 6 at 88-89. Based on the results of the
medical examination, the agency denied the appellant’s request for a waiver.
Id. at 82-83.
The agency proposed the appellant’s removal based on the following
charges: (1) inability to perform as a result of a medical condition; and
(2) failure to satisfy a condition of employment. Id. at 63. The appellant
submitted a response in writing that included, among other things, a letter from
his own physician stating that he was cleared to take a Job Task Scenario (JTS)
Appeals Test3 as an alternate PAT. IAF, Tab 6 at 57, Tab 12 at 41, Tab 20 at 24.
2 It appears that the reason for the different recommendation in November 2017, was
due to the fact that J.R. had been provided with a job description that did not include
the 1.5 mile run or other high-impact activities. IAF, Tab 11 at 9. Based on this job
description, J.R. concluded that the appellant was able to complete all tasks required for
his position, and he was fit for duty. Id. A Human Resources Specialist provided a
declaration under penalty of perjury that he filled out the physical standards on the
Optional Form (OF)-178 (Certificate of Medical Examination), Part B, for the
appellant’s November 6, 2017 examination; he mistakenly did not include the 1.5 mile
run component of the PAT in the physical standards. IAF, Tab 19 at 58-59.
3 The JTS Appeals Test involves three scenarios: (1) Gate Detail, (2) Tactical
Response, and (3) Chase and Restrain Subject. IAF, Tab 7 at 82-86. 3
After considering his response, the agency removed the appellant from his
position, effective May 18, 2018. IAF, Tab 6 at 56-60.
The appellant filed the instant appeal alleging that the agency did not prove
its charges and retaliated against him for his prior equal employment opportunity
(EEO) activity. IAF, Tab 1 at 5. He did not request a hearing. Id. at 3.
During the pendency of the appeal, the appellant withdrew his affirmative defense
of EEO retaliation and requested that the case proceed on written submissions on
the “sole issue” of whether the agency proved its charges. IAF, Tab 18 at 4.
Based on the written record, the administrative judge affirmed the removal in a
March 8, 2019 initial decision. IAF, Tab 21, Initial Decision (ID) at 1, 14. He
found that the agency met its burden of proving its charges, nexus, and the
reasonableness of the penalty. Id. at 6-14.4
The appellant has filed a petition for review.4 Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the agency proved its charge of
inability to perform as a result of a medical condition.
When the removal is based on a current medical condition, the agency must
prove either a nexus between the employee’s medical condition and observed
deficiencies in his performance or conduct, or a high probability, given the nature
of the work involved, that his condition may result in injury to himself or others.
Haas v. Department of Homeland Security, 2022 MSPB 36, ¶ 20. In other words,
the agency must establish that the appellant’s medical condition prevents him
4 After the record closed on review, the appellant moved for leave to file an additional
pleading. Petition for Review (PFR) File, Tab 4 at 5-6. The Board’s regulations do not
provide for pleadings other than a petition for review, a cross petition for review, a
response to the petition for review or cross petition for review, and a reply to a
response. 5 C.F.R. § 1201.114(a). For the Board to consider a party’s pleading, other
than one of those set forth above, the party must file a motion seeking leave and
describe the nature and need for the pleading. 5 C.F.R. § 1201.114(a)(5). If a party
wishes to submit a pleading after the record is closed, the party must show that the
evidence is new, i.e., that it was not readily available before the record closed, and
material. 5 C.F.R. § 1201.114(a)(5), (k). Here, the appellant asserts that newly issued
Air Force Instruction (AFI) 31-118, which went into effect on March 5, 2020,
supersedes the prior regulations that govern the standards for civilian police officers for
the Air Force and that the appellant would have met the requirements of the new
instruction. PFR File, Tab 4 at 5. As stated above, the agency removed the appellant
from his position, effective May 18, 2018, and the initial decision was issued on
March 8, 2019. IAF, Tab 6 at 56-60, ID at 1. According to the appellant, the latest
version of the AFI 31-118 was issued more than 21 months after the appellant’s removal
and a year after issuance of the initial decision; thus, it was not in effect at the time of
the agency action or when the initial decision was issued. We find that any evidence of
a change in the fitness standard, 21 months after the appellant’s removal and a year
after issuance of the initial decision, would be immaterial to the outcome of the appeal.
In so finding, we contrast the circumstances of this case to the cases in which an agency
removed an employee for physical inability to perform the duties of his or her position,
but the employee subsequently recovered before the issuance of the initial decision, and
the Board found that it did not promote the efficiency of the service to uphold the
removal action. Morgan v. U.S. Postal Service, 48 M.S.P.R. 607, 613 (1991) (same).
Accordingly, we find that the appellant has not met the criteria for submitting an
additional pleading on review, and we deny the motion. 5 C.F.R. § 1201.114(a)(5), (k).5
from being able to safely and efficiently perform the core duties of his position.
Id. The Board has indicated that the core duties of a position are synonymous
with the essential functions of a position under the Americans with Disabilities
Act of 1990 (ADA), as amended by the ADA Amendments Act, i.e.,
the fundamental job duties of the position, not including marginal functions.
Id., ¶ 21. One of the bases for finding that a function is essential is that it is the
“reason the position[] exists.” Id.; 29 C.F.R. § 1630.2(n)(2)(i).
In the specification underlying the charge, the agency stated that the
appellant has a medical condition that limits him to running no more than
100 yards at a given time and that his position requires him to be capable of
running more than 100 yards at a given time for law enforcement purposes.
IAF, Tab 6 at 63. We agree with the administrative judge that the agency proved
the appellant’s inability to perform his police officer position as a result of a
medical condition. ID at 8-9.
The appellant informed an agency physician that his condition was
permanent. IAF, Tab 6 at 128; ID at 8. The record reflects that the appellant’s
ability to run was compromised to the extent that two medical providers, in
June 2017 and December 2017, did not clear him for the 1.5 mile run component
of the PAT and deemed it necessary to restrict him to running no more than
100 yards at a time. IAF, Tab 6 at 88-89, Tab 10 at 33-34.
The position description for the police officer position states that the
appellant is, among other things, required to possess “common physical
characteristics and abilities in agility . . . and the strength to pursue, apprehend,
and detain uncooperative suspects.” IAF, Tab 7 at 97. The administrative judge
interpreted the task of pursuing suspects as requiring the ability to run, and
perhaps run a distance greater than, 100 yards. ID at 8-9. The administrative
judge properly found that running to pursue suspects is a core duty, or an
essential function, of the appellant’s position as a police officer and that he was a
danger to himself and any officers with whom he worked in that capacity because6
his ability to pursue suspects and to support other officers in such pursuits was
severely restricted. Id. We discern no error with this analysis.
In the initial decision, the administrative judge found that the appellant was
not entitled to waiver of the 1.5 mile run portion of the PAT pursuant to 5 C.F.R.
§ 339.204.5 ID at 9. On review, the appellant appears to challenge this finding,
stating among other things6 that S.C. made contradictory conclusions on the
Optional Form (OF) -178 (Certificate of Medical Examination) and the Standard
Form 600 (Chronological Record of Medical Care) regarding his ability to
perform the essential duties of his position. PFR File, Tab 1 at 17-18; compare
IAF, Tab 6 at 88-89 (noting the appellant’s OF-178 stated no running more than
100 yards and that he is not medically qualified and not cleared for the PAT),
with IAF, Tab 12 at 5-6 (finding that the appellant meets all requirements for his
position except for inability to run more than 100 yards). He further states that
the agency altered the OF-178 so that S.C. did not have the option to evaluate his
fitness to take the alternate PAT. PFR File, Tab 1 at 18. The Board generally
will not consider arguments raised for the first time in a petition for review absent
a showing that they are based on new and material evidence not previously
available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made this showing.
Even if we were to consider his arguments on review, a different result is not
5 An agency must waive a medical standard or physical requirement established under
this part when an employee, unable to meet that standard or requirement, presents
sufficient evidence that the employee, with or without reasonable accommodation, can
perform the essential duties of the position without endangering the health and safety of
the employee or others. 5 C.F.R. § 339.204(a).
6 The appellant also asserts on review that he raised no claim that the agency was
required to waive the 1.5 mile run component of the PAT pursuant to 5 C.F.R.
§ 339.204. PFR File, Tab 1 at 20. Even if the appellant did not raise such a claim, for
the reasons stated herein, the administrative judge’s statement is not prejudicial to his
substantive rights and provides no basis to reverse the initial decision. Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). 7
warranted; he is not entitled to a waiver of the PAT under 5 C.F.R. § 339.204
because he cannot perform the essential functions of his position.
On review, the appellant asserts a claim of harmful error because the
administrative judge failed to address his claim that the agency improperly
imposed the 1.5 mile run component of the PAT as a “physical requirement” for
his position. PFR File, Tab 1 at 21 (citing 5 C.F.R. § 339.203). This is the first
time that the appellant is raising a claim of harmful error; below, he withdrew his
retaliation affirmative defense, and he only raised this claim of error as a
challenge to the first charge, IAF, Tab 20 at 12-14. The appellant has not
provided any satisfactory explanation for why this claim should be treated as a
claim of harmful error for the first time on review. Banks, 4 M.S.P.R. at 271.
Nevertheless, we have considered this argument as a claim of error, but we
are not persuaded that a different outcome is warranted. Pursuant to 5 C.F.R.
§ 339.203(a), an agency is authorized to establish physical requirements for a
position, without OPM approval, when such requirements are essential for the
performance of the duties of a specific position. Based on our review of the
position description and other relevant documentation, and for the reasons
described herein and in the initial decision, we discern no error with the agency’s
conclusion that the 1.5 mile run portion of the PAT is a physical requirement of
the police officer position. See, e.g., Thompson v. Department of the Air Force,
104 M.S.P.R. 529, ¶ 9 (2007) (noting that, absent evidence of bad faith or patent
unfairness, the Board defers to the agency’s determination as to the requirements
that must be fulfilled for an individual to qualify for appointment to, or to retain,
a particular position) .
For these reasons, we find that the administrative judge properly sustained
the agency’s first charge. 8
We affirm the administrative judge’s finding that the agency proved its charge of
failure to satisfy a condition of employment.
For a charge of failure to satisfy a condition of employment, the agency
must prove: (1) the requirement at issue is a condition of employment, and
(2) the appellant failed to meet that condition.7 Gallegos v. Department of the
Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). In the specification underlying the
charge, the agency stated that the appellant was required to take and pass an
annual PAT and that he failed to meet that requirement. IAF, Tab 6 at 63. We
agree with the administrative judge that the agency proved this charge. ID at 12.
Importantly, the appellant acknowledged below and on review that passing
the PAT is a condition of employment, and he has a medical impairment that
prevents him from passing the 1.5 mile run component of the PAT. PFR File,
Tab 1 at 20; IAF, Tab 19 at 70, Tab 20 at 16, 24. Moreover, the position
description and Air Force Instruction (AFI) 31-122 clearly state that a police
officer is required to pass the PAT. IAF, Tab 7 at 79-82, 97.
According to AFI 31-122, Section 6.8.5.1, the successful completion of the
1.5 mile run component of the PAT demonstrates cardio-respiratory endurance or
aerobic capacity used in extended control and defensive tactics training.
Id. at 82. The administrative judge explained that such stamina and endurance is
important for tasks that a police officer performs, including running on pursuits,
responding to emergency situations, and defending against intruders. ID at 11-12.
The record also reflects that the appellant lacked the endurance and stamina that
is demonstrated by the 1.5 mile run component of the PAT. For example, on
November 18, 2016, the appellant was unable to successfully complete the mock
PAT, and he “suffered pain and swelling as a result of the 1.5 mile run portion of
the test.” IAF, Tab 7 at 50-51, Tab 19 at 70.
7 In the initial decision, the administrative judge identified a third factor, which stated
that, to the extent that the appellant’s failure to meet the condition was within the
agency’s control, he was afforded a reasonable opportunity to meet the condition.
ID at 7 (internal citations omitted). Even if we considered this third criterion, we would
find that the agency satisfied its burden. 9
The appellant maintains that he can satisfy this condition of employment,
despite his inability to pass the PAT, because the agency offers a JTS Appeals
Test (alternate PAT), which he was “fully capable of taking and passing.”
PFR File, Tab 1 at 19; IAF, Tab 20 at 24. He notes that the alternate PAT had a
running distance of approximately 562 feet (less than 200 yards) and that he was
able to run three-quarters of a mile (3,950 feet). PFR File, Tab 1 at 19; IAF,
Tab 7 at 82-86, Tab 20 at 24. He observes that he made such an assertion in his
declaration under penalty of perjury, but the administrative judge did not
reference or incorporate this assertion in the initial decision. PFR File, Tab 1
at 18-20.
The Board has held that an administrative judge’s failure to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 15 (2016).
Moreover, in analyzing the appellant’s claim, the administrative judge noted that
the appellant’s private physician cleared him to take the alternate PAT.
ID at 9-10; IAF, Tab 12 at 41. The administrative judge found that the medical
documentation from the appellant’s private physician was not persuasive and did
not adequately explain how the appellant could complete an alternate PAT,
especially given the strenuous nature of the tasks involved, which included but
was not limited to running 562 feet, jumping a 4-foot drainage ditch twice, and
traversing multiple levels of stairs. ID at 10-11. The administrative judge further
determined that the opinions of the agency’s medical providers regarding the
appellant’s physical limitations had more probative value than the appellant’s
private physician’s conclusory assertions8 because the agency’s medical providers
had more experience with the duty requirements of the appellant’s position, and
the agency’s medical records pertain directly to the appellant’s ability to perform
8 The appellant’s private physician did not express any opinion as to the appellant’s
fitness for duty, his running restriction, or his ability to pass the PAT. IAF, Tab 12
at 41. She merely stated he was “of sufficient medical condition to allow him to safely
complete the alternate physical abilities test.” Id. 10
the essential functions of his position and his ability to pass the 1.5 mile run
portion of the PAT. ID at 11; see, e.g., Brown v. Department of the Interior,
121 M.S.P.R. 205, ¶ 11 (2014) (recognizing that in assessing the probative weight
of medical opinions, the Board considers whether the opinion was based on a
medical examination and provided a reasoned explanation for its findings as
distinct from mere conclusory assertions, the qualifications of the expert
rendering the opinion, and the extent and duration of the expert’s familiarity with
the treatment of the appellant), overruled on other grounds by Haas v.
Department of Homeland Security, 2022 MSPB 36. We discern no basis to
disturb the administrative judge’s determination in this regard.
However, we wish to correct two statements that the administrative judge
made in the initial decision that the appellant raises as error on petition for
review. First, the administrative judge inaccurately stated in the initial decision
that the appellant admitted that he cannot run more than 100 yards at a given
time. PFR File, Tab 1 at 19-20; see ID at 10 (relying on the appellant’s answer to
request for admission 23). This request for admission only asked the appellant to
admit whether 100 yards is equivalent to 300 feet, which the appellant did so
admit. IAF, Tab 19 at 72. Second, the appellant challenges the administrative
judge’s statement that the collective bargaining agreement predates and,
therefore, trumps the Department of Defense Instruction (DoDI) 5525.15.
PFR File, Tab 1 at 15-17; ID at 10. We agree with the appellant that it was
improper for the administrative judge to make this particular finding,9 and we
correct the administrative judge’s statements in this regard.
Notwithstanding these modifications, DoDI 5525.15 does not support the
appellant’s claim of entitlement to the alternate PAT. Section 5.1(a)(1) of DoDI
5525.15 states that the PAT is a floor for physical fitness programs. IAF, Tab 7
at 31. Section 5.1(a)(2) states that alternate events are permitted for civilian
9 Indeed, the section of the 2016 version of DoDI 5525.15, which discusses physical
fitness and certification standards, is similar to the earlier 2012 version of that
instruction. Compare IAF, Tab 7 at 31, with IAF, Tab 20 at 56-57.11
police officers with “long-term medical restrictions or disabilities who can
otherwise perform the essential functions of the job, with or without reasonable
accommodation.” Id. Section 5.1(a)(3) of DoDI 5525.15 states that medical
screening and clearance must be completed before testing. Id. Notably, there is
no requirement in either version of DoDI 5525.15 that the agency administer an
alternate PAT for an individual, such as the appellant, who cannot perform the
essential functions of his position. IAF, Tab 7 at 31, Tab 20 at 56. Moreover, the
administrative judge correctly concluded that the appellant was not eligible for an
alternate PAT pursuant to section 5.1(a)(3) of DoDI 5525.15 because the
appellant was not cleared for testing due to his running restriction. ID at 10;
IAF, Tab 6 at 88-89, Tab 7 at 31.
Finally, the appellant asserts on petition for review that the administrative
judge erred10 in failing to address his arguments that the agency disregarded its
own medical disqualification requirements when: (1) it did not appoint a Medical
Review Officer and an Air Force Security Forces Qualifications Review Board to
conduct a medical standard disqualification recommendation, as required in
AFI 31-122, Section 2.5.4, and (2) it did not provide him an opportunity to submit
medical documentation from his private physician for consideration during the
medical examination process, as required in 5 C.F.R. § 339.303(b). PFR File,
Tab 1 at 12-14; IAF, Tab 20 at 14-15. Any administrative judge’s error in failing
to address these arguments is not prejudicial to the appellant, Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984), because we consider
these arguments on review.
The appellant argues that his submission of documentation from his private
physician that he was cleared to take an alternate PAT constitutes an appeal of the
agency’s medical disqualification determination, and he relies upon “Appendix 8”
of AFI 31-122, Section 2.5.4 to support his contention that a Security Forces
10 Here, too, the appellant frames this claim as one of harmful error. PFR File, Tab 1
at 12. For the reasons stated herein, we only analyze this claim as a claim of
administrative judge error.12
Qualifications Review Board and Medical Review Officer should have been
appointed. PFR File, Tab 1 at 13-14. It does not appear that “Appendix 8” was
included in the record below, but the agency provides a copy of Attachment 8 on
review. PFR File, Tab 3 at 6, 13-14. We have considered the agency’s
submission of Attachment 8 on review in order to resolve this issue.
Attachment 8 sets forth the process by which a Security Forces Qualifications
Review Board is established and when an employee may request a waiver of a
medical disqualification determination. Id. at 13-14.
We are not persuaded that the appellant’s documentation from his private
physician constitutes an appeal of the agency’s medical disqualification
determination because, among other things, the appellant submitted this
documentation in response to the March 26, 2018 notice of proposed removal, not
in response to S.C.’s December 6, 2017 determination that he was not medically
qualified or the agency’s March 8, 2018 denial of his request for a reasonable
accommodation. IAF, Tab 6 at 56-57, 63-66, 82-85, 89, Tab 12 at 41.
Even if we assumed for the purposes of our analysis that the appellant
properly submitted a waiver, he was not eligible for such a waiver. As stated in
Attachment 8, an agency cannot consider a waiver for an “employee[] who [has] a
permanent or long term medical disqualification unless [he] can provide objective
medical documentation that demonstrates that [he] can perform the essential
functions of the position with or without reasonable accommodation.” PFR File,
Tab 3 at 13 (emphasis added). For the reasons described herein and in the initial13
decision, the appellant cannot perform the essential functions of his position.11
ID at 10.
We have also considered the appellant’s argument that he was not afforded
an opportunity to submit his own medical evaluation, as required in 5 C.F.R.
§ 339.303(b). PFR File, Tab 1 at 14. This regulation states, in relevant part, that
when an agency requires a medical examination, the agency “designates the
examining physician,” but it “must offer the . . . employee an opportunity to
submit medical documentation from his . . . private physician or practitioner for
consideration in the medical examination process.” 5 C.F.R. § 339.303(b).
The regulation further states that the agency must review and consider all such
documentation supplied by the private physician or practitioner. Id. The record
reflects that appellant provided to the agency, and the agency considered,
a statement from his private physician prior to removing him from his position.
IAF, Tab 6 at 57, Tab 12 at 41. Thus, we discern no error.
For these reasons, we affirm as modified herein the administrative judge’s
conclusion that the agency proved the second charge.
We affirm the administrative judge’s findings on nexus and penalty.
The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s findings that the appellant’s removal promotes the
efficiency of the service and that the penalty of removal is within the tolerable
bounds of reasonableness. ID at 12-14; see Brown, 121 M.S.P.R. 205, ¶ 17
(finding that removal for physical inability to perform the essential functions of a
position promotes the efficiency of the service), overruled on other grounds by
11 According to Attachment 8, a Security Forces Qualifications Review Board is only
established to review cases for incumbent officers “who meet the full range of duties
contained within their Position Description (e.g., the PAT), but cannot meet the
established medical standards (e.g., color blind in one eye).” PFR File, Tab 3 at 13.
Additionally, the role of a Medical Review Officer is to “support the board to make
medical standard qualification/disqualification recommendations.” Id. The appellant
cannot meet the full range of duties in his position, and thus, it would be unnecessary to
convene a Security Forces Qualifications Review Board or appoint a Medical Review
Officer.14
Haas v. Department of Homeland Security, 2022 MSPB 36; Penland v.
Department of the Interior, 115 M.S.P.R. 474, ¶ 11 (2010) (finding that removal
for failure to satisfy a condition of employment promotes the efficiency of the
service and is within the tolerable bounds of reasonableness). Accordingly, we
affirm the agency’s removal action.
NOTICE OF APPEAL RIGHTS12
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
12 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file16
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 17
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 The court of appeals must 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.
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Maldonado_CelsoPH-0752-18-0318-I-1_Final_Order.pdf | 2024-07-12 | CELSO MALDONADO v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. PH-0752-18-0318-I-1, July 12, 2024 | PH-0752-18-0318-I-1 | NP |
983 | https://www.mspb.gov/decisions/nonprecedential/ZseDenny_CindySF-0752-20-0331-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY P. ZSEDENNY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-20-0331-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindy ZseDenny , Penn Valley, California, for the appellant.
Emma Kinstedt , El Segundo, 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
affirmed his indefinite suspension based upon the decision suspending his
eligibility to occupy a position designated “sensitive.” On petition for review, the
appellant restates his arguments that the agency committed harmful procedural
error in imposing the indefinite suspension, that his position does not actually
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).
require access to classified information, and that the agency’s decision to
investigate him was retaliatory. 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 by this Final Order to clarify that the agency met its burden of
establishing a nexus between the efficiency of the service and the indefinite
suspension action, we AFFIRM the initial decision.1
In the initial decision, the administrative judge did not make an explicit
finding concerning whether the agency proved that a nexus exists between the
efficiency of the service and the indefinite suspension action. Initial Appeal File
(IAF), Tab 18, Initial Decision at 1-8. Nevertheless, the administrative judge
correctly apprised the agency of its burden of proving nexus in the close of record
conference summary and order, IAF, Tab 11 at 8, and the agency argued that it
met its burden of proving nexus in its close of record filing, IAF, Tab 15 at 6, 16.
1 Following the close of the record on review, the appellant submitted a motion for
leave to file an additional pleading. Petition for Review File, Tab 7. In the motion, the
appellant states that circumstances have changed “due to the Agency’s latest actions on
January 28, 2021,” and requests leave to file “additional evidence that was not available
before the record closed.” Id. He has not explained, however, how any post-suspension
action by the agency would have any bearing on the indefinite suspension action at
issue in this appeal. Accordingly, the motion is denied. See 5 C.F.R. §§ 1201.114(k),
1201.115(d).2
Additionally, it is well settled that when, as here, an adverse action is based on
the failure to maintain a security clearance or the suspension of assignment to
duties designated sensitive , the adverse action promotes the efficiency of the
service because the absence of a properly authorized security clearance is fatal to
the job entitlement. See Grimes v. Department of Justice , 122 M.S.P.R. 36, ¶ 14
(2014); Flores v. Department of Defense , 121 M.S.P.R. 287, ¶ 12 (2014).
Accordingly, based on the existing record, we conclude that the agency met its
burden of proving nexus.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. Contact information for
the courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | ZseDenny_CindySF-0752-20-0331-I-1__Final_Order.pdf | 2024-07-12 | GREGORY P. ZSEDENNY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-20-0331-I-1, July 12, 2024 | SF-0752-20-0331-I-1 | NP |
984 | https://www.mspb.gov/decisions/nonprecedential/Scharff_Alfred_C_DE-3443-19-0448-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALFRED C. SCHARFF,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-3443-19-0448-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alfred C. Scharff , Monument, Colorado, pro se.
Thomas J. Ingram, IV , Esquire, Omaha, Nebraska, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his placement on a performance improvement plan (PIP)
and his contention of an involuntary retirement for lack of jurisdiction.
On petition for review, the appellant renews his claim of an involuntary
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
retirement. Petition for Review (PFR) File, Tab 1 at 5-7.2 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 supplement the initial decision to find that the appellant
failed to show that his retirement was involuntary, we AFFIRM the initial
decision.
The administrative judge correctly found that the Board lacked jurisdiction
to review the agency’s decision to place the appellant on a PIP. Initial Appeal
File (IAF), Tab 7, Initial Decision (ID) at 3 (citing Shaishaa v. Department of the
Army, 58 M.S.P.R. 450, 454 (1992) (finding that an employee’s placement on a
PIP is outside the scope of the Board’s jurisdiction)). He also found that the
appellant’s factual allegations precluded an involuntary retirement claim because
the appellant “averred he had picked a retirement date in furtherance of his future
plans . . . and then his supervisor placed him on a PIP that ended on his
2 The appellant’s petition for review appears to be untimely filed by approximately
16 minutes. PFR File, Tab 1 at 3. He claims that “the internet was down,” id., and
further details issues he experienced with the e-Appeal Online system, PFR File, Tab 3
at 4-5. The 16-minute delay is minimal, and the appellant is pro se. Additionally, the
Board has stated that, under limited circumstances, it will excuse delays in filing caused
by difficulties encountered with the e-Appeal Online system. See Palermo v.
Department of the Navy , 120 M.S.P.R. 694, ¶ 5 (2014). Accordingly, we find good
cause exists for the appellant’s untimely filing.2
previously selected retirement date.” ID at 3. As such, he did not make any
findings regarding the voluntariness of the appellant’s retirement.3 ID at 3-5.
We supplement the initial decision to find that the appellant failed to
establish that his retirement was involuntary. The appellant claimed that he was
coerced to retire. IAF, Tab 6 at 5. To establish involuntariness on the basis of
coercion, an employee must show that the agency effectively imposed the terms
of the retirement, the employee had no realistic opportunity but to retire, and the
retirement was the result of improper acts by the agency. Vitale v. Department of
Veterans Affairs , 107, M.S.P.R. 501, ¶ 19 (2007). The record contains no
evidence that the agency imposed the terms of the appellant’s retirement; to the
contrary, the appellant states that he chose the date of his retirement. IAF, Tab 1
at 4. The appellant also claims that, in order “to avoid the humiliation of a PIP
followed by a possible termination,” he chose to retire. PFR File, Tab 1 at 6.
Our reviewing court has held, however, that the fact that an employee is faced
with an unpleasant situation or that his choice is limited to two unattractive
options does not make his decision any less voluntary. See Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996). Thus, the fact that the appellant
was faced with the choice of completing the PIP or retiring does not make his
choice to retire involuntary.
3 Because the administrative judge determined that the appellant’s factual allegations
precluded an involuntary retirement claim, he did not inform the appellant below how
he may establish jurisdiction over such a claim. ID at 3 & n.1; IAF, Tab 2; see Burgess
v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985).
Nonetheless, the lack of notice regarding how to meet his jurisdictional burden did not
prejudice the appellant’s substantive rights because the initial decision discussed ways
in which an appellant can establish a claim of involuntary retirement and his pleadings
otherwise demonstrate that he was aware of the jurisdictional prerequisites. See
Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 17 n.10 (2016) (excusing an
administrative judge’s failure to provide Burgess notice when an appellant’s pleadings
demonstrated that she was aware of the jurisdictional prerequisites of her appeal); see
also Parker v. Department of Housing and Urban Development , 106 M.S.P.R. 329, ¶ 8
(2007) (explaining that an administrative judge’s failure to provide Burgess notice can
be cured 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 on review).3
The appellant also argued on review that the Board should consider
subjective factors, such as his background and work experience, when
determining whether his working conditions were so intolerable that he felt
compelled to retire. PFR File, Tab 1 at 6. When determining whether working
conditions were so intolerable that an employee felt compelled to retire, thereby
rendering his retirement involuntary, the Board looks to a “reasonable person in
his position” standard. Vitale, 107 M.S.P.R. 501, ¶ 20 (emphasis added). Thus,
although the Board gauges the ultimate question of whether an employee’s
retirement is voluntary by an objective standard, see Shoaf v. Department of
Agriculture, 260 F.3d 1336, 1341-42 (Fed. Cir. 2001), it nonetheless considers
factors specific to an employee, such as length of service, when determining
whether the totality of the circumstances supports a finding that his retirement
was involuntary. Considering the appellant’s background and work experience,
we find that he failed to establish that his working conditions were so intolerable
that he was compelled to retire. See Miller v. Department of Defense ,
85 M.S.P.R. 310, ¶ 32 (2000) (stating that dissatisfaction with work assignments,
a feeling of being unfairly criticized, or difficult or unpleasant working
conditions generally are not so intolerable as to compel a reasonable person to
retire). Based on the foregoing, we find that the appellant failed to establish that
his retirement was involuntary, and we supplement the initial decision in that
regard.
The appellant also includes with his petition for review an August 5, 2019
email from the new Resident Engineer discussing the appellant’s retirement and
the PIP, and a portion of a performance appraisal that he claims he received on
May 15, 2019. PFR File, Tab 1 at 5, 8-11. These documents do not provide a
basis to disturb the initial decision. 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.4
U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). Here, the appellant asserts
that the performance appraisal is from May 15, 2019, and the email submitted on
review is dated August 5, 2019. PFR File, Tab 1 at 8-11. The record closed on or
around October 1, 2019. IAF, Tab 2 at 3. Thus, both documents existed before
the close of the record, and the appellant has not explained why he failed to
submit them below.
Further, although the August 5, 2019 email discusses the appellant’s
retirement and his placement on the PIP, it does not demonstrate that his
retirement was involuntary; rather, it illustrates the appellant’s “unpleasant
situation” of a choice between “two unattractive options.” PFR File, Tab 1 at 8.
As explained above, such circumstances do not evidence involuntariness. See
Staats, 99 F.3d at 1124. Accordingly, the email is not of sufficient weight to
warrant an outcome different than that of the initial decision and, thus, does not
provide a basis to grant the petition for review. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating that the Board generally will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision).
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
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
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation6
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Scharff_Alfred_C_DE-3443-19-0448-I-1__Final_Order.pdf | 2024-07-12 | ALFRED C. SCHARFF v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-3443-19-0448-I-1, July 12, 2024 | DE-3443-19-0448-I-1 | NP |
985 | https://www.mspb.gov/decisions/nonprecedential/Rene_Ronald_M_DC-4324-22-0334-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD MARSHEL RENE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-4324-22-0334-I-2
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence George Widem , Esquire, West Hartford, Connecticut, for the
appellant.
Angela Madtes , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Uniformed Services
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 and Reemployment Rights Act of 1994 (codified as amended at
38 U.S.C. §§ 4301-4335). On review, the appellant submitted two separate
pleadings with separate sets of arguments. Petition for Review (PFR) File,
Tabs 1, 3.2 He seems to assert that the first was directed at the administrative
judge and that the Board should only address the second. PFR File, Tab 3 at 5-6.
In any event, the appellant’s first pleading argues about the applicability or
enforceability of his prior settlement agreement with the agency. PFR File, Tab 1
at 5-6. The appellant also questions whether he was entitled to a performance
evaluation in the absence of him working for the evaluation period, and he
suggests that the Board has the authority to decide whether the agency violated
the Administrative Procedures Act. Id. at 6-7. The appellant’s second pleading
argues that the administrative judge may have applied the wrong legal standard
when addressing his one claim on the merits. PFR File, Tab 3 at 6-7. He also
2 A year after the July 2023 initial decision and petition for review, the appellant filed a
motion for leave to submit a new argument. Compare Rene v. Department of Veterans
Affairs, MSPB Docket No. DC-4324-22-0334-I-2, Appeal File (I-2 AF), Tab 30, Initial
Decision at 1; PFR File, Tabs 1, 3, with PFR File, Tab 7. He seeks permission to
submit new arguments about a July 2024 decision by the U.S. Supreme Court, which
affirmed in part a May 2022 decision by the U.S. Court of Appeals for the Fifth Circuit.
PFR File, Tab 7 at 4-5; see Securities and Exchange Commission v. Jarkesy , 603 U.S.
____, 144 S.Ct. 2117 (2024). The appellant’s motion is denied.
Once the record closes on review, no additional evidence or argument will be accepted
unless it is new and material and was not readily available before the record closed.
Maloney v. Executive Office of the President, Office of Administration , 2022 MSPB 26,
¶ 4 n.4; 5 C.F.R. § 1201.114(k). In addition, Board regulations generally require that a
party first raise issues, including constitutional challenges to an administrative judge’s
authority to decide a case, before the administrative judge prior to raising the same
issues before the full Board on petition for review. McClenning v. Department of the
Army, 2022 MSPB 3, ¶¶ 11-15; 5 C.F.R. §§ 1201.59(c), 1201.115(d). Although the
appellant presented some arguments below about whether the administrative judge’s
appointment violated “the Appointments Clause and the Executive Powers clause” of
the U.S. Constitution, I-2 AF, Tab 26 at 5-8, he did not present similar arguments on
review, PFR File, Tabs 1, 3. Plus, we found no argument in his pleadings from below
or his petition for review regarding any Seventh Amendment right to jury trial, i.e., the
lone issue addressed in Jarkesy. 603 U.S. ____, 144 S.Ct. 2117 at *7. The Court’s
issuance of new precedent does not persuade us to reopen the record so that the
appellant can present a new legal theory about the Seventh Amendment and a right to
jury trial.2
disputes the administrative judge’s finding of fact regarding the agency’s policies
surrounding performance pay. Id. at 7. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. 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
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 | Rene_Ronald_M_DC-4324-22-0334-I-2__Final_Order.pdf | 2024-07-12 | RONALD MARSHEL RENE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-4324-22-0334-I-2, July 12, 2024 | DC-4324-22-0334-I-2 | NP |
986 | https://www.mspb.gov/decisions/nonprecedential/Aldridge_LaWana_J_DA-0841-20-0271-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWANA J. ALDRIDGE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-0841-20-0271-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deborah Griffis , Austin, Texas, for the appellant.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that she was ineligible for a Federal Employees’ Retirement System (FERS)
annuity. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
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 argues that OPM unlawfully seized her FERS retirement
contributions to satisfy her outstanding debt with her former employing agency
and failed to notify her about the debt-collection action or produce any documents
as to how her contributions were used. Petition for Review (PFR) File, Tab 1
at 4. She claims that she was misled and was taken advantage of because of her
mental incompetency, and that the administrative judge was not able to
adequately address that issue. Id. at 5-6. Finally, she asserts that the
administrative judge did not provide her an opportunity to submit additional
evidence in support of her appeal. Id. at 5.
We agree with the administrative judge that the appellant was not eligible
to receive a FERS annuity because she requested and received a refund of her
retirement deductions. IAF, Tab 22, Initial Decision at 3-6; see 5 U.S.C.
§ 8424(a); see also Pagum v. Office of Personnel Management , 66 M.S.P.R. 599,
601 (1995); Pagum v. Office of Personnel Management , 55 M.S.P.R. 648, 651
(1992). The administrative judge addressed the appellant’s claims in the initial
decision, and the petition for review presents no basis for disturbing the2
administrative judge’s well-reasoned findings. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
For the first time on review, the appellant provides a July 27, 2020 letter
from her physician stating that she was diagnosed in 2003 with cognitive
impairment, as well as major depression, severe anxiety, and chronic back pain,
and was treated with various medications, counseling, and therapy. PFR File,
Tab 1 at 8-10. The appellant appears to be alleging that she was unable to obtain
the letter from her physician earlier due to difficulties caused by the COVID-19
pandemic.2 Id. at 5, 8.
Under 5 C.F.R. § 1201.115, 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.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). Even if we
consider the letter, which is dated, and was obtained, after the record was closed,
we are not persuaded that it supports a finding of mental incompetence.
A medical provider’s conclusion that an individual is mentally incompetent
is persuasive only if the medical provider explains how a mental illness renders
the individual incompetent. Gonzales v. Office of Personnel Management ,
91 M.S.P.R. 46, ¶ 5, aff’d, 48 F. App’x 747 (Fed. Cir. 2002). Here, the
appellant’s physician opined that the appellant did not have the capacity to make
independent decisions from 2003 to 2008, and that she relied on other people in
managing her daily activities, including her finances, during this time period.
PFR File, Tab 1 at 9. However, we note that the July 27, 2020 letter is not on the
official letterhead of the physician’s office, is not signed by the physician, and is
2 There is no indication that the appellant sought to subpoena evidence from her doctor
while the appeal was pending before the administrative judge. 3
not supported by other medical evidence from the time the appellant signed the
forms to withdraw her deposit, or any other time period. Id. at 8-10.
Furthermore, the appellant’s physician appears to have no specialization in
mental health issues.
Even if the appellant was unable to focus or recall basic information and
experienced frequent mood swings, as her physician alleges, we are not persuaded
that these problems rendered the appellant incompetent. Id. at 9; see Gonzales,
91 M.S.P.R. 46, ¶ 6 (finding that a medical assessment that an appellant was
depressed and easily distracted, but otherwise having a normal mental status and
functioning, is inconsistent with a conclusion of mental incompetence).
Additionally, the letter from the appellant’s physician is not consistent with the
appellant’s testimony that she understood the importance of planning for the
future and took steps with her then-husband to ensure that she made an informed
decision regarding her retirement. Thus, a different outcome is not warranted
here. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980)
(explaining the Board will not grant a petition for review based on new evidence
absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Aldridge_LaWana_J_DA-0841-20-0271-I-1__Final_Order.pdf | 2024-07-12 | LAWANA J. ALDRIDGE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0841-20-0271-I-1, July 12, 2024 | DA-0841-20-0271-I-1 | NP |
987 | https://www.mspb.gov/decisions/nonprecedential/Battle_John_D_DC-0831-19-0437-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. BATTLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-19-0437-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John D. Battle , Upper Marlboro, Maryland, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of the initial decision of the Office of Personnel
Management (OPM) for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On August 7, 1995, the appellant divorced his spouse. Initial Appeal File
(IAF), Tab 1 at 6-8. The divorce decree issued by the Circuit Court for Prince
George’s County, Maryland stated that “the marital portion of the plaintiff’s
pension shall be equitably divided pursuant to MD FAM. LAW CODE ANN. § 8-201
et. seq., in accordance with the terms and conditions of the [Qualified Domestic
Relations Order (QDRO)], which the parties have submitted simultaneously
herewith . . . .” Id. at 7. The record does not contain the QDRO, but the
appellant stated the QDRO was submitted and accepted by OPM in 1996. Id. at 2.
The appellant filed the instant Board appeal challenging OPM’s decision
regarding the disbursement of funds from his retirement annuity to his former
spouse.2 Id. at 1. He indicated that his former spouse was not entitled to a
portion of his retirement annuity because she remarried prior to age 55 and prior
to his retirement in 2010. Id. He asserted that he made multiple attempts to
contact OPM regarding the matter since 2010 but that OPM never responded. Id.
2 The record does not contain the initial decision, but OPM stated that it issued an
initial decision on January 18, 2013. IAF, Tab 4 at 4.2
He provided copies of letters he faxed to OPM on July 5, 2017, and
December 3, 2018. Id. at 2-5.
In an acknowledgment order, the administrative judge informed the
appellant that the Board may lack jurisdiction over the appeal and afforded the
parties an opportunity to submit evidence and argument on the jurisdictional
issue. IAF, Tab 2 at 2-3. The appellant did not respond. OPM moved to dismiss
the appeal for lack of jurisdiction because it had not yet issued a final decision.
IAF, Tab 4 at 4. The administrative judge held a telephonic status conference.
IAF, Tab 7. In the summary of the telephonic status conference, the
administrative judge noted that OPM represented that it would issue a final
decision in the appeal within 30 days. Id. at 1. Thereafter, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction
because OPM had not yet issued a final decision. IAF, Tab 8, Initial Decision
(ID) at 1-2.
The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 2. The agency has responded, PFR, Tab 5,
and the appellant has replied, PFR File, Tab 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). The appellant has the burden
of proving the Board’s jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Generally, the Board has jurisdiction over OPM
determinations affecting an appellant’s rights or interests under the Civil Service
Retirement System (CSRS) only after OPM has issued a final or reconsideration
decision.3 5 U.S.C. § 8347(d); Smith v. Office of Personnel Management ,
114 M.S.P.R. 395, ¶ 8 (2010); 5 C.F.R. § 831.110. Nevertheless, the Board may
3 The administrative judge indicated that the appellant retired under CSRS and we
discern no reason to disturb this finding. IAF, Tab 2 at 2-3; ID at 1-2.3
take jurisdiction over a retirement appeal in the absence of a final or
reconsideration decision when the appellant has made repeated requests for such a
decision and the evidence indicates that OPM does not intend to issue a
reconsideration decision. Johnson v. Office of Personnel Management ,
113 M.S.P.R. 118, ¶ 10 (2010).
Here, it is undisputed that OPM has not issued a final decision in this
matter. Moreover, as discussed below, we decline to take jurisdiction over the
appeal in light of OPM’s statement that it intends to issue a final decision.
The appellant requests that the Board intervene to stop OPM’s payments to
his former spouse because OPM did not issue a final decision within 30 days.
PFR File, Tab 2 at 3. He asserts that the divorce decree is the controlling
document and that it does not identify the benefits to which his former spouse is
entitled or how much or how long she is to receive any benefits. Id. He further
asserts that he informed OPM that he never received or signed a QDRO4 and that
OPM relied on a QDRO that was “not specific as to the length of [F]ederal
employment during marriage because it had to be recalculated.” Id.
As previously noted, OPM represented during the pendency of the appeal
that it intended to issue a final decision. IAF, Tab 7 at 1. This weighs
significantly against the Board taking jurisdiction in this appeal. See Johnson,
113 M.S.P.R. 118, ¶ 12 (exercising jurisdiction upon finding that, among other
things, OPM did not assert, either before or during the appeal to the Board, that it
planned to take further action in the appellant’s case); McNeese v. Office of
Personnel Management , 61 M.S.P.R. 70, 71-74 (1994) (finding that, despite
4 The appellant provides a March 14, 1996 letter in which OPM informed him that his
former spouse had submitted a divorce decree awarding her a portion of his future
retirement benefits and that, as soon as it received a court-certified copy of the divorce
decree and the QDRO, it would determine the court order acceptable for processing.
PFR File, Tab 6 at 9-10. Under 5 C.F.R. § 1201.115, 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.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980 ). The appellant has not
made this showing.4
OPM’s long delay in issuing a final appealable decision, the Board lacked
jurisdiction because OPM expressed an intent to issue a reconsideration decision),
aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Although the appellant indicates
that OPM’s decision was unduly delayed, he has not provided evidence indicating
that OPM does not intend to issue a final decision despite its representation
during the status conference. Regarding the appellant’s remaining arguments on
review, most of these arguments concern the merits of the appeal, which are not
relevant to the dispositive jurisdictional issue. PFR File, Tab 2 at 3; 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 irrelevant to the
jurisdictional question). Accordingly, we find that the administrative judge
properly dismissed this appeal for lack of jurisdiction.
After OPM issues a final decision, the appellant may file an appeal with the
appropriate regional office if he disagrees with that decision.5 See 5 U.S.C.
§ 8347(d); 5 C.F.R. § 831.110. Furthermore, considering the length of time OPM
has taken to issue a final decision, the appellant may also appeal to the
appropriate regional office if OPM fails to take such action within 30 calendar
days of the date of this Final Order. Any future appeal must be filed within the
time limits set forth in the Board’s regulations. See 5 C.F.R. § 1201.22(b)(1).
5 We make no finding as to whether any future Board appeal would be barred by the
doctrines of res judicata or collateral estoppel.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.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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.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.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. 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 | Battle_John_D_DC-0831-19-0437-I-1__Final_Order.pdf | 2024-07-12 | JOHN D. BATTLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-19-0437-I-1, July 12, 2024 | DC-0831-19-0437-I-1 | NP |
988 | https://www.mspb.gov/decisions/nonprecedential/Hollings_Ricky_N_AT-844E-20-0492-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICKY NELSON HOLLINGS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-20-0492-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ricky Nelson Hollings , Columbia, South Carolina, pro se.
Moraima Alvarez , 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 decision by the Office of Personnel Management dismissing his
application for disability retirement as untimely filed. On petition for review, the
appellant states that he is appealing the reconsideration decision and “the receipt
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of the document for reconsideration.” Petition for Review File, Tab 1 at 3.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
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 | Hollings_Ricky_N_AT-844E-20-0492-I-1__Final_Order.pdf | 2024-07-12 | RICKY NELSON HOLLINGS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0492-I-1, July 12, 2024 | AT-844E-20-0492-I-1 | NP |
989 | https://www.mspb.gov/decisions/nonprecedential/McClain_Gloria_Y_DC-0831-19-0020-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GLORIA Y. MCCLAIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-19-0020-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria Y. McClain , Clinton, Maryland, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) finding her
ineligible to receive annuity benefits under the Civil Service Retirement System
(CSRS). 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 following facts are undisputed. Between 1980 and 1986, the appellant
was employed by the U.S. Air Force, first at Maxwell Air Force Base, Alabama,
then in Washington, D.C. Initial Appeal File (IAF), Tab 11 at 19, 21. Her
service with the Air Force was covered by CSRS. Id. at 19. She resigned from
her position as a Secretary in June 1986 and submitted to OPM a request for the
refund of her retirement deductions. Id. at 19, 21. On August 4, 1986, OPM
refunded her retirement deductions for that period of service in the amount of
$5,538.33. Id. at 12.
In 1992, the appellant reentered the Federal service as a Program Specialist
for the Department of State in Washington, D.C. IAF, Tab 1 at 2, Tab 11 at 10,
Tab 16, Hearing Compact Disc (HCD) (testimony of the appellant). Due to the
emotional effects of the deaths of her mother, father, and sister in 2011 and 2012,
the appellant resigned from that position in 2015. IAF, Tab 11 at 17, Tab 14 at 2;
HCD (testimony of the appellant). On April 8, 2015, she requested a refund of2
her retirement deductions for her service with the Department of State.2 IAF,
Tab 11 at 14-15. OPM issued the appellant a refund of her deductions in the
amount of $12,294.29. Id. at 12, 17-18.
Thereafter, the appellant submitted an Application for Deferred Retirement.
Id. at 9-11. On July 20, 2018, OPM issued the appellant a final decision
informing her that she was not eligible to receive annuity benefits under CSRS
because she had previously requested and received refunds of her deductions. Id.
at 12-13. The appellant filed the instant appeal with the Board challenging
OPM’s decision. IAF, Tab 1. After holding a telephonic hearing during which
the appellant was the only witness to testify, the administrative judge issued an
initial decision agreeing with OPM and finding that the appellant failed to show
that she was entitled to an annuity. IAF, Tab 17, Initial Decision (ID) at 3-4.
The appellant has filed a petition for review, and OPM has responded.
Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proving her entitlement to the retirement
benefits she seeks by a preponderance of the evidence. See Cheeseman v. Office
of Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986);
5 C.F.R. § 1201.56(b)(2)(ii). An employee’s request and receipt of a refund of
her CSRS contributions generally extinguishes her right to receive a retirement
annuity, unless she is later reemployed in a covered position and makes a
redeposit of previous retirement contributions. Youngblood v. Office of Personnel
Management, 108 M.S.P.R. 278, ¶ 12 (2008).
2 The Application for Refund of Retirement Deductions shows that the appellant
requested a refund of her deductions from 1987 through 2015. IAF, Tab 11 at 14.
However, the appellant testified that she was employed as a Government contractor
prior to her reentry into the civil service in 1992. HCD (testimony of the appellant).
Thus, her time between 1987 and 1992 was not covered by CSRS, and she did not
receive a refund for that time period. 3
OPM’s letter informing the appellant that she was not entitled to an annuity
explained that she filed for and received refunds of her deductions for the time
periods for which she would have been eligible to collect an annuity. IAF,
Tab 11 at 12. It further informed her that those refunds voided her right to an
annuity, and that because she was not currently employed by the Federal
Government, she was not eligible to make a redeposit of the refunds. Id. The
administrative judge agreed with OPM, finding that the appellant did not deny
applying for and receiving the refunds and noting that she had not alleged that she
is reemployed with the Federal Government. ID at 4. Based on the
well-established principle that an employee cannot collect an annuity when she
has requested and received a refund of her retirement deductions, and is not
reemployed with the Federal Government, we agree with OPM and the
administrative judge that the appellant is not eligible to collect an annuity. See
Youngblood, 108 M.S.P.R. 278, ¶ 12.
In her petition for review, the appellant argues that she suffered from
depression and was unable to make sound decisions when she elected to apply for
the refunds of her retirement deductions. PFR File, Tab 1 at 4. She further
argues that the administrative judge and OPM did not consider her mental state
when issuing their decisions. Id. We find these arguments to be without merit.
The initial decision reflects that the administrative judge considered the
appellant’s mental health status, stating that he was sympathetic to her situation,
but found that she was nonetheless not eligible to receive an annuity. ID at 4.
Regarding whether the appellant’s mental state impacts her eligibility to
collect an annuity, the Board and its reviewing court have considered an
exception to the general rule that receipt of a refund of deductions voids an
annuity, finding that an individual who was mentally incompetent at the time she
applied for and received the refund is not responsible for that election. Wadley
v. Office of Personnel Management , 103 M.S.P.R. 227, ¶ 11 (2006); see
Yarbrough v. Office of Personnel Management , 770 F.2d 1056, 1060-61 (Fed. Cir.4
1985) (considering a claim that an individual’s election to receive a refund of her
retirement contributions was not binding because she was not competent, but
concluding that the evidence did not support a finding of mental incompetence).
We find this exception inapplicable here because the record does not support a
finding that the appellant was incompetent when she elected to request a refund
of her deductions. The doctor’s note upon which the appellant relied below is
dated March 18, 2019, and states that she has been under the physician’s care for
9 years. IAF, Tab 14 at 4. Thus, this physician was not treating the appellant at
the time of her first request for a refund of her deductions in 1986 and cannot
attest to her mental state at that time.
The letter goes on to summarize the appellant’s depression and attributes it
to the death of her mother and the loss of her job. Id. Concerning the appellant’s
decision to request a refund of her deductions in 2015, the physician stated,
“[o]bviously, she had abnormal thinking and could not make such decisions.” Id.
Although we sympathize with the appellant, we find this statement to be
insufficient to establish that she was incompetent to make the decisions at issue
here. The record contains no evidence that she was formally adjudicated to be
incompetent or that a legal guardian has been appointed for her at any time.
Therefore, we find that the appellant’s mental state does not exempt her from the
general rule that a refund of deductions voids a future annuity. See Yarbrough,
770 F.2d at 1061 (considering whether an appellant was formally declared
incompetent or had a legal guardian as relevant factors in assessing competency).
The appellant also argues on review that OPM incorrectly placed her in the
Federal Employees Retirement System (FERS) and that she never received
counseling on retirement issues when she left the Federal service. PFR File,
Tab 1 at 4-5. We find these arguments also to be without merit. The appellant
has not pointed to any document indicating that she was placed in FERS; her
applications for refunds of her deductions, her application for deferred retirement,
and OPM’s decision all reference CSRS. IAF, Tab 11 at 9 -21. Nonetheless, the5
principle that the request and receipt of a refund of deductions voids eligibility
for an annuity applies regardless of whether the employee made retirement
contributions to CSRS or FERS. See 5 U.S.C. §§ 8342(a), 8424(a).
Regarding the assertion that OPM never counseled the appellant on
retirement issues upon her resignation, the record reflects that the appellant was
on notice that the request and receipt of a refund of her deductions would void her
eligibility to collect an annuity. The 1986 Application for Refund of Retirement
Deductions informed the appellant that “[i]f you have more than 5 years of
service, you may be entitled to annuity rights which will be forfeited by payment
of this refund unless you are later reemployed subject to the Civil Service
Retirement Law.” IAF, Tab 11 at 20. Therefore, the appellant was aware as early
as 1986 that a refund of her deductions would impact her eligibility for an
annuity. Regarding her second request for a refund, although the full
documentation for that request does not appear to be included in the record, the
relevant form that she completed, Standard Form 2802, id. at 14-16, is available
on OPM’s website and provides instructions for the completion of the form,
including a caution that an applicant’s entitlement to an annuity will be forfeited
upon the receipt of a refund. Regardless of the appellant’s claims below and on
review, OPM cannot be required to pay an annuity when an applicant does not
meet the statutory requirements for it. See Office of Personnel Management
v. Richmond, 496 U.S. 414, 423-24, 434 (1990) (concluding that payment of an
annuity that would be in direct contravention of the Federal statute upon which
the applicant’s ultimate claim to the funds must rest would violate the
Appropriations Clause of the Constitution); see also Pagum v. Office of Personnel
Management, 66 M.S.P.R. 599, 601 (1995) (stating that when an applicant does
not meet the requirements for an annuity, OPM cannot be required to pay the
annuity). 6
Based on the foregoing, we deny the appellant’s petition for review and
affirm the initial decision, which affirmed the final decision by OPM denying the
appellant’s application for CSRS annuity benefits.
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.7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | McClain_Gloria_Y_DC-0831-19-0020-I-1__Final_Order.pdf | 2024-07-12 | GLORIA Y. MCCLAIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-19-0020-I-1, July 12, 2024 | DC-0831-19-0020-I-1 | NP |
990 | https://www.mspb.gov/decisions/nonprecedential/Robinson_Chanie_L_AT-0843-20-0062-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHANIE L. ROBINSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0843-20-0062-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chanie L. Robinson , Tampa, Florida, 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 her appeal of a reconsideration decision of the Office of Personnel
Management (OPM) as untimely filed without good cause. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant challenges the initial decision, dismissing her appeal as
untimely without good cause. She argues, for the first time on review, that her
appeal was timely filed on October 22, 2019, because she received the
reconsideration decision of OPM on October 5, 2019. Petition for Review (PFR)
File, Tab 1 at 4. In support of her argument, she submits an envelope bearing an
illegible postmark, which she asserts is October 2, 2019. PFR File, Tab 3 at 2, 4.
In her narrative response, she provides information regarding contacts that she
made with an employee with OPM concerning her reconsideration request and
information regarding the Board that she sought prior to filing her appeal.
Id. at 2.
In the Order on Timeliness issued on October 29, 2019, the administrative
judge specifically informed the appellant that her appeal may be dismissed if she
did not show that it is either timely or that good cause for waiving the filing
requirement existed. Initial Appeal File (IAF), Tab 5 at 1-3. The order also2
informed her that she should not wait to submit any argument and evidence on the
timeliness issue at a later time. Id. at 4. The appellant did not respond to the
order. In her petition for review, she does not dispute that she did not respond to
the order or offer an explanation for not responding to the timeliness order.
PFR File, Tabs 1, 3.2
When, as here, an appellant fails to respond to an administrative judge’s
order, the U.S. Court of Appeals for the Federal Circuit, our reviewing court, has
found that she does so at her peril and that all litigants before the Board are
obligated to respect the Board’s procedures and the orders of the administrative
judges. Mendoza v. Merit Systems Protection Board , 966 F.2d 650, 653
(Fed. Cir. 1992) (en banc). Therefore, the court has affirmed the Board’s
dismissal of appeals based on untimeliness when the appellants fail to respond to
orders on timeliness issued by administrative judges. Aaron v. Merit Systems
Protection Board , 626 F. App’x 283, 285 (Fed. Cir. 2015);3 Cheguina v. Merit
Systems Protection Board , 69 F.3d 1143, 1146 (Fed. Cir. 1995); Mendoza,
966 F.2d at 654. Furthermore, the Board has generally found that it will not
consider on review an argument regarding the timeliness of an appeal when the
administrative judge dismissed the appeal after an appellant has inexplicably
failed to respond to a timeliness order. See, e.g., Brown v. U.S. Postal Service ,
2 The administrative judge issued the initial decision after the time limit for the
appellant’s response to the timeliness order was due and she had not filed a response,
but before the time had expired for the agency’s response. IAF, Tab 5 at 4. This was
error. However, we discern no prejudice to the appellant’s rights because she was given
her full opportunity to provide evidence and argument on the timeliness issue.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (holding that
an adjudicatory error that is not prejudicial to a party’s substantive rights provides no
basis for reversal of an initial decision); see also Gala v. U.S. Postal Service ,
38 M.S.P.R. 474, 478 (1988) (affirming the dismissal of an appeal as untimely when the
premature closing of the record by the administrative judge did not denigrate the
appellant’s substantive rights), aff’d, 878 F.2d 1445 (Fed. Cir. 1989) (Table).
3 The Board may rely on unpublished Federal Circuit decisions if it finds the court’s
reasoning to be persuasive. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513, ¶ 12
(2011).3
52 M.S.P.R. 118, 121-22 (1992); Sledge v. Department of Justice , 44 M.S.P.R.
455, 459, aff’d, 923 F.2d 870 (Fed. Cir. 1990) (Table).
Given the circumstances that the administrative judge specifically informed
the appellant that her appeal would be dismissed on the basis of untimeliness if
she did not prove that it was either timely filed or that good cause existed for
waiving the Board’s filing requirement, and that she should not wait to submit
any argument and evidence at another time, and she offers no explanation
regarding why she did not raise the timeliness argument below, she has failed to
show that the Board should consider her argument on review. See Cheguina,
69 F.3d at 1147; Brown, 52 M.S.P.R. at 121-22.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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 | Robinson_Chanie_L_AT-0843-20-0062-I-1__Final_Order.pdf | 2024-07-12 | CHANIE L. ROBINSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0843-20-0062-I-1, July 12, 2024 | AT-0843-20-0062-I-1 | NP |
991 | https://www.mspb.gov/decisions/nonprecedential/Shandler_Joshua__D_PH-844E-19-0163-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSHUA D. SHANDLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-844E-19-0163-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, 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 reconsideration decision of the Office of Personnel Management
denying the appellant’s application for disability retirement benefits 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).
Federal Employees’ Retirement System. On petition for review, the appellant
reiterates the arguments he made below that he suffers from Attention Deficit
Hyperactivity Disorder, which renders him unable to carry a firearm, an essential
duty of his Postal Inspector position. He also reiterates his argument that,
regardless of his specific diagnosis, because his medical condition makes him
unable to carry a firearm, he has established that his medical condition is
incompatible with either useful or efficient service in his position. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. 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 , 420 (2017). If you have a representative in this case, and your
representative receives this decision before you do, then you must file with the
district court no later than 30 calendar days after your representative receives
this decision. If the action involves a claim of discrimination based on race,
color, religion, sex, national origin, or a disabling condition, you may be entitled
to representation by a court -appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations 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 | Shandler_Joshua__D_PH-844E-19-0163-I-1_Final_Order.pdf | 2024-07-12 | JOSHUA D. SHANDLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-19-0163-I-1, July 12, 2024 | PH-844E-19-0163-I-1 | NP |
992 | https://www.mspb.gov/decisions/nonprecedential/Simon_Sharon_L_AT-0845-20-0227-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON L. SIMON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-20-0227-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharon L. Simon , Homosassa, Florida, 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 her appeal from the final decision of the Office
of Personnel Management (OPM) finding her ineligible for Federal Employees’
Group Life Insurance (FEGLI). Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant retired under the Federal Employees’ Retirement System
effective December 2018. Initial Appeal File (IAF), Tab 1 at 9. At some point,
she requested to continue her FEGLI into retirement. Id. OPM issued a final
decision on December 11, 2019, determining, as relevant here, that the appellant
was ineligible to continue her FEGLI benefits into retirement. Id. at 10-11. The
appellant filed an appeal with the Board challenging this determination. IAF,
Tab 1 at 2, Tab 11 at 3. OPM subsequently moved to dismiss the appeal,
asserting that claims relating to the method and manner by which OPM
administers FEGLI are generally not within the Board’s jurisdiction. IAF, Tab 10
at 4.
The administrative judge issued an order to the appellant to show cause
why the Board has jurisdiction over her appeal. IAF, Tab 12. The appellant
responded to the administrative judge’s order arguing that the Board has
jurisdiction because OPM’s final decision “instructed and directed [her] to appeal2
this matter to the Board.” IAF, Tab 15 at 4. The administrative judge issued an
initial decision based on the written record because the appellant withdrew her
request for a hearing. IAF, Tab 1 at 1, Tab 5 at 3, Tab 16, Initial Decision (ID)
at 1. The administrative judge found that the Board lacks jurisdiction over the
appeal. 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 to the petition for review. PFR File,
Tab 4.
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). On review, the appellant
requests the Board to order OPM to reinstate her life insurance. PFR File, Tab 1
at 4-5. We discern no basis to disturb the administrative judge’s determination
that the Board generally does not have jurisdiction over claims concerning the
Federal employee life insurance program. ID at 2; Chamblin v. Office of
Personnel Management , 112 M.S.P.R. 266, ¶ 7 (2009). Here, the appellant
challenges OPM’s determination that she is ineligible for FEGLI benefits. PFR
File, Tab 1 at 4-5; 5 C.F.R. § 870.701(a)(2).
The Board recognizes several exceptions to the general rule that it lacks
jurisdiction over OPM decisions concerning the administration of life insurance
programs. One exception is OPM’s failure to explain its deductions for such
insurance premiums in the context of a petition to enforce a Board’s order to
OPM to award an annuity. Chamblin, 112 M.S.P.R. 266, ¶¶ 11-12. Another
exception concerns requests for waiving repaying annuity overpayments caused
by the retroactive application of FEGLI premiums. Id., ¶¶ 13-14. The appellant’s
circumstances here do not fall under these exceptions. She is not seeking to3
enforce a Board order or waive an overpayment resulting from a retroactive
deduction of FEGLI premiums. IAF, Tab 1 at 7, 9-11.
Further, to the extent that the appellant argues that the Board possesses
jurisdiction over her appeal based on the notice of appeal rights provided by OPM
in its final decision, we note that the mere fact that the agency informed the
appellant that she may have a right of appeal to the Board does not confer
jurisdiction on the Board.1 PFR File, Tab 1 at 4; Morales v. Social Security
Administration, 108 M.S.P.R. 583, ¶ 5 (2008). Accordingly, we affirm the
administrative judge’s decision to dismiss this appeal from OPM’s determination
of FEGLI eligibility for lack of jurisdiction.
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.
1 The appellant resubmits with her petition for review documents related to OPM’s
FEGLI eligibility determination. PFR File, Tab 1 at 6-10; IAF, Tab 15 at 6-10. We
have considered these documents again on review, as they pertain to the issue of
jurisdiction, a matter that may be raised at any time during the Board proceedings.
Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016). However, we find
that they do not change the outcome in this matter.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 | Simon_Sharon_L_AT-0845-20-0227-I-1_Final_Order.pdf | 2024-07-12 | SHARON L. SIMON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-20-0227-I-1, July 12, 2024 | AT-0845-20-0227-I-1 | NP |
993 | https://www.mspb.gov/decisions/nonprecedential/Harper_CharlesDA-0752-20-0406-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES R. HARPER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-20-0406-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeff Letts , Esquire, Ruther Glen, Virginia, for the appellant.
Steven E. Coney , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal based on the charge of unacceptable conduct (four
specifications). 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).
On petition for review, the appellant does not challenge the administrative
judge’s findings sustaining the charge of unacceptable conduct. Petition for
Review (PFR) File, Tab 1 at 4-6; Initial Appeal File (IAF), Tab 19, Initial
Decision (ID) at 3-9. Rather, he argues again on review that there was no nexus
between his misconduct and the efficiency of the service because his work
performance was not affected, and he further asserts that the agency incurred no
additional monetary costs and that his “actions did not harm the [a]gency in any
way.” PFR File, Tab 1 at 4-5; IAF, Tab 14 at 4. He also repeats his arguments
that the removal penalty was unreasonable and punitive. PFR File, Tab 1 at 5-6;
IAF, Tab 14 at 5.
The appellant’s mere disagreement with the administrative judge’s
well-reasoned findings regarding nexus and penalty does not provide a basis for
us to reweigh the evidence or substitute our assessment of the evidence for that of
the administrative judge. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility). The administrative judge
properly found that the agency established a nexus between the appellant’s2
misconduct involving the use of his agency-issued equipment at work, and the
efficiency of the service. ID at 9-10; see Campbell v. Department of the Army ,
123 M.S.P.R. 674, ¶ 24 (2016) (noting that there is a presumption of nexus when
the misconduct occurred at work); see also Els v. Department of the Army ,
82 M.S.P.R. 27, ¶ 11 (1999) (finding that a nexus exists between the efficiency of
the service and misuse of Government property). Finally, the record supports the
administrative judge’s finding that the penalty of removal was reasonable and that
the deciding official had considered the relevant factors. ID at 10-12; see
Pinegar v. Federal Election Commission , 105 M.S.P.R. 677, ¶ 53 (2007);
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981).
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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Harper_CharlesDA-0752-20-0406-I-1_Final_Order.pdf | 2024-07-12 | CHARLES R. HARPER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-20-0406-I-1, July 12, 2024 | DA-0752-20-0406-I-1 | NP |
994 | https://www.mspb.gov/decisions/nonprecedential/Ortiz_AlfredoDA-0752-19-0337-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALFREDO ORTIZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-19-0337-I-1
DATE: July 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose Menchaca , San Antonio, Texas, for the appellant.
Austin D. Black , Esquire, and Richard G. Saliba , Esquire, Dallas, Texas,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
As correctly explained in the initial decision, to establish the Board’s
jurisdiction in a constructive suspension appeal, an appellant must prove, among
other things, that he lacked a meaningful choice in the matter and it was the
agency’s wrongful actions that deprived him of that choice. Initial Appeal File
(IAF), Tab 16, Initial Decision (ID) at 5; see Thomas v. Department of the Navy ,
123 M.S.P.R. 628, ¶9 (2016); Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8
(2013); see also 5 C.F.R. § 1201.56(b)(2)(i)(A) (providing that the appellant has
the burden of proof regarding jurisdictional issues).2 In such an appeal, an
appellant is entitled to a jurisdictional hearing if he makes a nonfrivolous
allegation3 of Board jurisdiction. ID at 4; see Thomas, 123 M.S.P.R. 628, ¶ 11.
For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to make a nonfrivolous
2 The appellant does not dispute, and we discern no reason to disturb, the administrative
judge’s finding that the appellant has adverse-action appeal rights under 5 U.S.C.
chapter 75 because he is a preference-eligible Postal Service employee who has
completed 1 year of current continuous service in the same position. ID at 3-4; see
Henderson v. U.S. Postal Service , 95 M.S.P.R. 454, ¶ 4 (2004).
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
allegation of the Board’s jurisdiction over the appealed matter as a constructive
suspension. ID at 5-6. Specifically, she found that, although he nonfrivolously
alleged that he lacked a meaningful choice as to his absence, he failed to
nonfrivolously allege that his absence was due to the agency’s wrongful actions.
Id.; see Romero v. U.S. Postal Service , 121 M.S.P.R. 606, ¶ 9 (2014) (concluding
that the Board lacked jurisdiction over the constructive suspension appeal
because, although the agency’s decision not to return the appellant to work with
medical restrictions deprived him of a meaningful choice in the matter, the
agency did not act improperly in refusing to allow him to return to work) .
On petition for review, the appellant argues that the Board has jurisdiction
over this constructive suspension appeal because he was forced to use sick leave
for more than 14 days, citing Rutherford v. U.S. Postal Service , 112 M.S.P.R. 570
(2009), overruled by Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 (2014).
Petition for Review (PFR) File, Tab 1 at 3. In Rutherford, the Board found that
the appellant made a nonfrivolous allegation of jurisdiction over a constructive
suspension appeal that concerned the agency’s termination of her light-duty
assignment and subsequent enforced leave action. Rutherford, 112 M.S.P.R. 570,
¶¶ 2, 8-9, 15. The Board overruled Rutherford in Abbott, which clarified that an
agency’s placement of an employee on enforced leave for more than 14 days
constitutes an appealable suspension within the Board’s jurisdiction that should
not be adjudicated using the jurisdictional framework for constructive
suspensions. Abbott, 121 M.S.P.R. 294, ¶¶ 9-10.
For the following reasons, we find Rutherford factually distinguishable
from the instant appeal. Here, unlike in Rutherford, the agency did not terminate
a light-duty assignment that the appellant had been performing or subject him to
an enforced leave action. Cf. Rutherford, 112 M.S.P.R. 570, ¶¶ 2, 8. Instead, the
appellant sought to return to work with medical restrictions after being absent on
approved leave to recover from an off-the-job injury. ID at 2; IAF, Tab 1 at 6,
Tab 7 at 15, Tab 14. Under the circumstances of this appeal, we find that the3
administrative judge properly adjudicated the appealed matter as an alleged
constructive suspension and found the enforced leave analysis inapposite. ID
at 4 n.1; see Romero, 121 M.S.P.R. 606, ¶ 8. Moreover, the appellant’s argument
that he was forced to take leave when he sought to return to work and was
prevented from doing so for more than 14 days does not render the matter an
appealable suspension under Abbott rather than a constructive suspension under
Bean. See Romero, 121 M.S.P.R. 606, ¶ 9 n.2 (rejecting such an argument in a
constructive suspension appeal).
The appellant further argues on review that the agency wrongly required
him to submit additional medical documentation and refused to return him to
work. PFR File, Tab 1 at 3. When an employee voluntarily takes leave, an
agency may properly refuse to allow him to resume working if he does not satisfy
the agency’s conditions for returning to work. Rosario-Fabregas v. Merit
Systems Protection Board , 833 F.3d 1342, 1347 (Fed. Cir. 2016). In those
circumstances, the agency’s refusal to allow the employee to return to work does
not amount to a constructive suspension. Id.
In finding that the appellant failed to nonfrivolously allege that his absence
was due to a wrongful agency action, the administrative judge relied on
sections 865.1 and 865.3 of the agency’s Employee and Labor Relations Manual
(ELM). ID at 6; IAF, Tab 11 at 14-15. The appellant does not dispute that he is
covered by such ELM sections. PFR File, Tab 1. Among other things,
ELM sections 865.1 and 865.3 provide that management can require employees
who have been absent for medical reasons to submit detailed medical
documentation in order to clear their return to work when management has a
reasonable belief, based upon reliable and objective information, that the
employee may not be able to perform the essential functions of his position. IAF,
Tab 11 at 14-15. ELM section 865.1 further provides that the decision to clear an
employee to return to work rests with management. Id. at 14. 4
As discussed in the initial decision, when the appellant initially sought to
return to work after recovering from an off-the-job injury, he gave the agency a
physician’s note certifying that he was restricted from lifting more than
25 pounds. ID at 2; IAF, Tab 1 at 6, Tab 7 at 15. The agency did not allow him
to return to work, but his supervisor told him what medical documentation he
needed to obtain from his physician for clearance to return to work. ID at 2; IAF,
Tab 8 at 3. The appellant subsequently gave the agency a Work Restriction
Evaluation Form in which his physician again certified that he was restricted from
lifting more than 25 pounds. ID at 2; IAF, Tab 7 at 16. The job description for
the appellant’s City Carrier position states that an incumbent “[m]ay be required
to carry mail weighing up to 35 pounds in shoulder satchels or other equipment
and to load or unload container[s] of mail weighing up to 70 pounds.” ID at 5;
IAF, Tab 7 at 31. The administrative judge found that the physician’s
certifications, on their face, indicated the appellant could not perform the
essential functions of his City Carrier position. ID at 6. The appellant does not
challenge this finding on review, and we discern no reason to disturb it.
Importantly, he does not dispute that, based on the City Carrier job description
and his physician’s certifications, his position required him to lift more weight
than his medical restrictions allowed. IAF, Tab 7 at 15-16, 31. After considering
the circumstances of this appeal and the ELM sections described above, we find
that the appellant has failed to make a nonfrivolous allegation that the agency
acted improperly in requiring him to submit more detailed medical documentation
and in deciding not to clear his return to work.
In addition, we agree with the administrative judge’s finding that, absent an
otherwise appealable action, the Board lacks jurisdiction over the appellant’s
claims of prohibited personnel practices and harmful procedural errors. PFR File,
Tab 1 at 3; ID at 6-7; see 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). Although we have
considered such claims to the extent they bear on the jurisdictional issue, for the5
reasons discussed above and in the initial decision, we find that the appellant has
failed to make a nonfrivolous allegation that any wrongful agency action
precipitated his absence. Cf. Rosario-Fabregas v. Department of the Army ,
122 M.S.P.R. 468, ¶ 20 (2015) (considering the appellant’s discrimination and
reprisal claims to the extent they related to the jurisdictional issue in a
constructive suspension appeal), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Because
the appellant has failed to meet his jurisdictional burden, we decline to address
his due process claim. PFR File, Tab 1 at 3; cf. Abbott, 121 M.S.P.R. 294, ¶ 8
(observing that, if an appellant establishes jurisdiction over a constructive
suspension, the Board will reverse the agency’s action on due process grounds
without proceeding to the merits).
The appellant’s remaining argument that he was not made part of the
telephonic status conference does not provide a basis to disturb the initial
decision. PFR File, Tab 1 at 3. In particular, he argues that he was not able to
ask questions at the status conference, which harmed his ability to obtain a
settlement or to convince the administrative judge to hold a hearing. Id. The
appellant has failed to explain how his inability to attend the status conference
constitutes an adjudicatory error, especially when the record reflects that his
representative was in attendance. IAF, Tab 10 at 1. Moreover, in the
Acknowledgment Order, the administrative judge informed the parties of the
settlement process and told them that they could contact her to seek clarification.
IAF, Tab 2 at 1, 7, 13-14. Further, in the Order and Summary of Telephonic
Status Conference, she updated them on the status of settlement discussions and
apprised them of what was required to obtain a hearing. IAF, Tab 10 at 1, 5-6.
Thus, we find that the appellant has failed to show that his substantive rights were
harmed by his inability to ask questions at the status conference. 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) .6
Accordingly, we affirm the initial decision dismissing this appeal for lack
of 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.
4 The appellant does not dispute, and we discern no reason to disturb, the administrative
judge’s findings that the Board lacks jurisdiction over the appealed matter as a negative
suitability determination or an alleged violation of his restoration rights under the
Federal Employees’ Compensation Act (FECA). ID at 6 n.5; see, e.g., Hamilton v.
U.S. Postal Service, 123 M.S.P.R. 404, ¶¶ 9, 14 (2016) (finding that the appellant had
no restoration rights under FECA based on a medical condition that was not
job-related); see also, e.g., Besemer v. U.S. Postal Service , 77 M.S.P.R. 260, 263 n.2
(1998) (finding that an appellant who was a Postal Service employee had no right to
appeal an alleged suitability determination based, in part, on the fact that Postal Service
positions are in the excepted service).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you8
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Ortiz_AlfredoDA-0752-19-0337-I-1__Final_Order.pdf | 2024-07-12 | ALFREDO ORTIZ v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-19-0337-I-1, July 12, 2024 | DA-0752-19-0337-I-1 | NP |
995 | https://www.mspb.gov/decisions/nonprecedential/Allen_John_A_AT-0752-22-0152-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN A. ALLEN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-22-0152-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jesse Kelly , Esquire, Atlanta, Georgia, for the appellant.
Roderick D. Eves , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal for failure to follow instructions. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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 concerning the administrative judge’s application of the
Whistleblower Protection Act (WPA), as amended, to the appellant’s affirmative
defenses, we AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a City Carrier with the U.S. Postal Service.
Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 19. On July 6, 2021, his supervisor
proposed his removal based on the charge of failure to follow instructions. IAF,
Tab 7 at 27-30. The deciding official issued a Letter of Decision on
November 15, 2021, agreeing with the proposed removal. Id. at 20-23.
The appellant filed a Board appeal challenging the agency’s charge and
raising affirmative defenses of a violation of due process and retaliation for
activity such as filing grievances. IAF, Tab 1 at 1, Tab 19 at 4-8, Tab 25 at 2-3.
Following a hearing, IAF, Tab 27, Hearing Recording (HR), the administrative
judge issued an initial decision sustaining the removal action, IAF, Tab 29, Initial
Decision (ID) at 15. Specifically, the administrative judge found that the agency
proved its charge of failure to follow instructions, established a nexus between
the misconduct and the efficiency of the service, and showed that the penalty of
removal was reasonable. ID at 3-8, 13-15. He found that the appellant failed to
3
prove his affirmative defenses of a due process violation or a prohibited
personnel practice as described in 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C),
or (D). ID at 8-12. The administrative judge further found that the appellant
belatedly raised harmful procedural error for the first time during the hearing and,
in any event, failed to prove this claim. ID at 12-13.
The appellant has filed a petition for review, and the agency has responded
in opposition to the petition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant argues that the administrative judge erred in finding that the
agency proved its charge of failure to follow instructions, which involved the
appellant’s repeated refusal to deliver mail to a particular residential address.
PFR File, Tab 1 at 5-7; IAF, Tab 7 at 27-30; ID at 3-8. More specifically, the
appellant challenges the administrative judge’s factual finding that the appellant
was not placed in a clearly dangerous situation that justified his disobedience as
alleged. PFR File, Tab 1 at 5-7; ID at 3-8. We give due deference to the
administrative judge’s credibility determination and assessment of the appellant’s
testimony at the hearing. ID at 7-8; see Haebe v. Department of Justice , 288 F.3d
1288, 1301 (Fed. Cir. 2002). We find no error in his finding that the agency
proved its charge. See 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).
The appellant also reraises the following affirmative defenses: (1) a due
process violation based on the deciding official’s alleged reliance on ex parte
information that the appellant was “terminated multiple times” in his Douglas2
factors analysis; and (2) retaliation for an alleged protected disclosure of an
attempted assault by a resident at the address and for filing equal employment
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
4
opportunity (EEO) complaints. PFR File, Tab 1 at 7-11. He argues that the
administrative judge erred in finding that he failed to prove these defenses. Id.
The administrative judge correctly found no due process violation.
We find no material error in the administrative judge’s finding of fact that
the deciding official understood the reference to multiple terminations in the
decision letter to be a typographical error and thus did not receive or consider ex
parte information concerning terminations in reaching his decision. ID at 8-9.
We do not find a sufficiently sound reason for overturning the administrative
judge’s conclusion that the deciding official’s testimony was both credible and
persuasive on the issue. See Haebe, 288 F.3d at 1301. The appellant was on
notice of all the prior discipline that the deciding official actually considered in
reaching his decision. Thus, we affirm the administrative judge’s finding of no
due process violation.
We affirm, as modified, the administrative judge’s conclusion that the appellant
failed to prove his other affirmative defenses.
We modify the administrative judge’s analysis of the appellant’s retaliation
defenses because he applied the incorrect legal framework as explained herein.
ID at 10-12.
Retaliation for disclosures to the agency of an attempted assault by a
customer on his mail route
On review, the appellant argues that he made a protected “whistleblowing”
disclosure when he reported to the agency that he was attacked by a customer in
the course of his duties on March 22, 2021. PFR File, Tab 1 at 10-11 (citing IAF,
Tab 7 at 39). The administrative judge applied the incorrect standard of proof to
this claim. ID at 10-11. The “contributing factor” standard of proof set forth in
5 U.S.C. § 1221(e)(1) is inapplicable to the analysis of reprisal claims by Postal
Service employees, who are not employees of an “agency” covered under the
WPA, as amended. Matthews v. U.S. Postal Service , 93 M.S.P.R. 109, ¶ 13
(2002); Mack v. U.S. Postal Service , 48 M.S.P.R. 617, 621 (1991); see 5 U.S.C.
5
§ 2302(a)(2)(C); Banks v. Merit Systems Protection Board , 854 F.3d 1360,
1362-63 (Fed. Cir. 2017) (finding that the U.S. Postal Service is not an Executive
agency for the purposes of Title 5). We therefore vacate the administrative
judge’s analysis and apply the higher standard of proof set forth in Warren v.
Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir. 1986), to the appellant’s
claims of retaliation under 5 U.S.C. § 2302(b)(8)(A)(i) or 2302(b)(9)(A)(i). See
Mack, 48 M.S.P.R. at 621-22. In order to prove reprisal under the Warren
standard, the appellant has the burden of showing the following: (1) a protected
disclosure was made; (2) the accused official knew of the disclosure; (3) the
adverse action under review could have been retaliation under the circumstances;
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. Warren, 804 F.2d at 656–58; Mack, 48 M.S.P.R. at 621-22.3
We are unpersuaded by the appellant’s apparent argument that his
disclosure of a crime by a non-Government actor, i.e., the attempted assault by a
resident to whom he was delivering mail, constituted a protected disclosure under
5 U.S.C. § 2302(b)(8)(A)(i) and 5 U.S.C. § 2302(b)(9)(A)(i), as these sections
were intended to protect disclosures of Government wrongdoing. PFR File, Tab 1
at 11; IAF, Tab 7 at 39-40; see Covington v. Department of the Interior ,
2023 MSPB 5, ¶ 16 (stating that a disclosure of wrongdoing committed by a
non-Federal Government entity may be protected only when the Government’s
interests and good name are implicated in the alleged wrongdoing); Arauz v.
Department of Justice , 89 M.S.P.R. 529, ¶¶ 6-7 (2001). Thus, the appellant has
not met his burden of proof regarding his affirmative defense of a prohibited
personnel practice under 5 U.S.C. § 2302(b)(8)(A)(i) or 2302(b)(9)(A)(i). See
Warren, 804 F.2d at 656-68.
3 The administrative judge cited the correct standard of proof in the prehearing order.
IAF, Tab 25 at 2.
6
Reprisal for protected grievance activity
The administrative judge applied erroneously the standards set forth in
5 U.S.C. § 1221(a) to the present case by limiting consideration to claims of
reprisal for protected activity under section 2302(b)(9)(A)(i), i.e., complaints
involved in remedying a violation of section 2302(b)(8). ID at 11, 13 n.5. As the
Board has independent jurisdiction over the appellant’s removal action, the
appellant may bring an affirmative defense of reprisal for activity protected under
5 U.S.C. § 2302(b)(9)(A)(ii), i.e., complaints other than with regard to remedying
a violation of section 2302(b)(8). See 5 U.S.C. § 7701(c)(2)(B); 5 C.F.R.
§ 1201.3(a)(1); see also Mack, 48 M.S.P.R. at 621-22 (explaining that an
“employee” under 5 U.S.C. 7511(a)(1)(B), like the appellant, has the right to raise
the affirmative defenses set forth in 5 U.S.C. § 7701, including an allegation of a
prohibited personnel practice under section 2302(b)). Thus, we consider his
filing of a grievance protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), and we
consider his affirmative defense of reprisal for his grievance activity under the
Warren standard. See Warren, 804 F.2d at 656–58.
We conclude that the appellant did not prove reprisal for grievance activity.
The only grievance specifically identified by the appellant in his prehearing
submission was his grievance filed on July 26, 2021, in response to his notice of
proposed removal.4, 5 IAF, Tab 6 at 5, Tab 19 at 6, Tab 23 at 6. Thus, we
presume that the official accused of reprisal is the deciding official on the current
removal action. The deciding official appeared to have minimal knowledge of the
grievance: the appellant referenced “numerous grievances” in his written reply to
the deciding official; however, he did not question the deciding official regarding
4 The grievance was remanded because a decision letter had not yet been issued. IAF,
Tab 6 at 5. It appears that the grievance has been deactivated due to the appellant’s
Board appeal. IAF, Tab 6 at 3, Tab 7 at 29; HR (testimony of the appellant).
5 To the extent that the appellant has referred to his April 6, 2021 statement describing
the interaction with the postal customer as a “grievance,” we find that it is not an
“appeal, complaint, or grievance” covered by 5 U.S.C. § 2302(b)(9)(A)-(B); we have,
however, considered whether it might be a disclosure under 5 U.S.C. § 2302(b)(8).
7
his knowledge of his grievance(s) or any retaliatory motive at the hearing. IAF,
Tab 7 at 26; HR (testimony of the deciding official). The deciding official
testified that he was supplied only with the decision packet, which did not contain
any documentation related to the appellant’s grievance, and that he had never
heard of the appellant and did not know anything about him prior to being asked
via email to serve as the deciding official. HR (testimony of the deciding
official). Overall, the appellant presented very little circumstantial or direct
evidence in support of his claim, and we find that he failed to show a genuine
nexus between the alleged retaliation and his removal.6 See Warren, 804 F.2d
at 656-58.
Retaliation for protected EEO activity
On review, the appellant mentions again his claim of EEO retaliation. PFR
File, Tab 1 at 11. An appellant may bring an affirmative defense of retaliation for
EEO activity as a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) or
(b)(9)(A)(ii). See Mata v. Department of the Army , 114 M.S.P.R. 6, ¶ 9 n.3
(2010).
In his prehearing submission, the appellant listed “protected activity,”
including in December 2020, “when he opposed discrimination in the form of
harassment from [his supervisor] . . . after [his supervisor] order[ed] him off the
clock he was able to get that decision reversed by upper management.” IAF,
Tab 23 at 5-6. At the hearing, the appellant testified that he filed at least two
EEO complaints about his supervisor, who was the proposing official for his
removal, based on retaliation. HR (testimony of the appellant). Upon further
questioning by the administrative judge, the appellant testified that his supervisor
6 The administrative judge did not continue the hearing for the testimony of a union
representative, whom he had previously approved to testify regarding the appellant’s
grievance(s) but who was on extended sick leave and could not be reached for the
hearing, finding that the testimony would not be relevant, material, or nonrepetitious.
ID at 13 n.5; see 5 C.F.R. § 1201.41(b)(10). The appellant has not challenged this
ruling on review, and we find no abuse of discretion on the part of the administrative
judge.
8
would “get petty” and retaliate against him by charging him with disobeying
instructions when she felt slighted by him or when he would bring up procedures
or quote regulations she was violating. Id. He testified that he filed his first EEO
complaint in late early 2018 or early 2019 but provided no specifics about the
complaint or outcome. Id. He testified that, in June 2021, he filed another EEO
complaint about an absent without leave (AWOL) charge by his supervisor that
was related to the current matter. Id. Furthermore, he testified that his
supervisor, who later proposed his removal, participated in the mediation of his
June 2021 EEO complaint, which resulted in the dismissal of the AWOL charge
and compensation to the appellant. Id. He testified that he could not recall if the
EEO activities occurred before or after his proposed removal. Id. Along with his
alleged grievances, the appellant also referenced his “EEO complaints” in his
written reply to the deciding official prior to his removal. IAF, Tab 7 at 26.
Accepting the appellant’s unrefuted testimony that he filed EEO
complaints, and, assuming his EEO complaints involved complaints of activity
prohibited by Title VII, we apply the standard and methods of proof for an
affirmative defense of Title VII EEO retaliation as set forth in Pridgen v. Office
of Management and Budget , 2022 MSPB 31, ¶¶ 20-24, 29.7 Specifically, an
appellant may prove such a defense by showing that his protected activity was at
least a motivating factor, i.e., played any part, in the agency’s action or decision.
Id., ¶ 21. The appellant may meet this burden by submitting any combination of
direct or indirect evidence, including evidence of pretext, comparator evidence,
and evidence of suspicious timing or other actions or statements that, taken alone
or together, could raise an inference of retaliation. Id., ¶ 24. Here, the appellant
did not question the proposing official or the deciding official at the hearing
regarding EEO retaliation or present any persuasive evidence, direct or
7 We find that the appellant was not prejudiced by receiving notice of a different
standard of proof with respect to his affirmative defenses, as the appellant did not
present sufficient evidence in support of his claim under any standard. IAF, Tab 25
at 2.
9
circumstantial, of retaliation. We find that the appellant failed to prove his
affirmative defenses.
NOTICE OF APPEAL RIGHTS8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
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. | Allen_John_A_AT-0752-22-0152-I-1__Final_Order.pdf | 2024-07-11 | JOHN A. ALLEN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-22-0152-I-1, July 11, 2024 | AT-0752-22-0152-I-1 | NP |
996 | https://www.mspb.gov/decisions/nonprecedential/Belgum_ChristineDE-0752-18-0206-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTINE BELGUM,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-18-0206-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hartley D. Alley , Esquire, San Antonio, Texas, for the appellant.
Deborah M. Levine , 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
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s disparate
penalty claim, we AFFIRM the initial decision.
BACKGROUND
On June 17, 2016, the appellant, an EAS-20 Postmaster in Holdrege,
Nebraska, accompanied a City Carrier Assistant trainee on a delivery route.
Initial Appeal File (IAF), Tab 8 at 18, 64. The trainee showed signs of
heat-related illness, and he testified2 that the appellant first encouraged him to
drink more water, and then left him to rest on a customer’s porch for several
minutes while she went to get the delivery vehicle. IAF, Tab 28 at 57-58. The
trainee also testified that the appellant provided him with a hat and took him to
the nearest grocery store to get fluids and popsicles to cool him down before she
took him to the emergency room. IAF, Tab 8 at 43, Tab 28 at 18-19.
The agency issued a January 12, 2018 notice of proposed removal in which
it charged the appellant with two specifications of Unacceptable Conduct. IAF,
2 The Board reversed the agency’s first attempt to remove the appellant for the
misconduct alleged in this matter on due process grounds. Belgum v. U.S. Postal
Service, MSPB Docket No. DE-0752-17-0120-I-2, Initial Decision (Dec. 12, 2017).
The appellant withdrew her request for a hearing in this appeal of the agency’s second
removal action, IAF, Tab 36 at 4, and, without objection from either of the parties, the
administrative judge cited hearing and deposition testimony from the first removal
action in adjudicating the second one, IAF, Tab 43, Initial Decision (ID) at 10 nn.9-10. 2
Tab 8 at 18-21. In the first specification, the agency alleged that the appellant
had violated written directives circulated to all Executive and Administrative
Schedule (EAS) employees in the Central Plains District (CPD) by the District
Manager and Manager of Safety, instructing them to call 911 immediately if an
employee shows signs and/or complains of any heat -related symptoms. Id. at 18.
In the second specification, the agency alleged that the appellant had falsely
stated to her manager that she had called 911, and that the trainee was taken to
the hospital as a result. Id. The deciding official issued a March 16, 2018
decision letter sustaining both specifications and removing the appellant.3 Id.
at 13-17.
The appellant appealed her removal. IAF, Tab 1. She withdrew her
request for a hearing. IAF, Tab 36. In his order closing the record, the
administrative judge found that the agency’s second specification was more
properly construed as a charge of falsification. IAF, Tab 37 at 1-2. He provided
the agency with the elements and burdens of establishing its charges, and
explained the appellant’s burden to establish her affirmative defenses of (1) due
process violation, (2) harmful error, (3) sex discrimination, and (4) retaliation for
her prior Board appeal, in which the Board reversed the agency’s first attempt to
remove her on due process grounds. Id. at 3-9.
On the written record, the administrative judge found that the agency
established the unacceptable conduct charge, determining that the nature of the
charge was one of failure to follow instruction, and that the record showed that
(1) the appellant was given a proper instruction, and (2) she failed to follow it.
IAF, Tab 43, Initial Decision (ID) at 5-14. The administrative judge found that
the agency failed to establish the falsification charge, which he split into two
specifications. ID at 15-22. Regarding the first specification, he found that, even
though the appellant’s statement in a June 17, 2016 email that “911 was called”
3 Although the decision letter did not set forth an effective date, the administrative
judge found that the agency removed the appellant effective March 21, 2018, the date
she received the decision letter. ID at 3-4 n.5. 3
was incorrect, preponderant evidence did not establish that she had the intent to
deceive required to establish the charge because her testimony that she meant to
say that “911 was not called” was credible. ID at 15-18. Concerning the second
specification of falsification, the administrative judge similarly found the
agency’s allegations insufficient to establish that the appellant intentionally
falsified an agency accident report to state that 911 was called and that the trainee
was transported to the hospital by ambulance. ID at 18-22.
The administrative judge found that the appellant failed to establish that the
agency violated her right to due process because the appellant did not show that
the deciding official completely failed to consider her written response to the
notice of proposed removal. ID at 22-25. Concerning the appellant’s contention
that the agency conducted a flawed investigation, the administrative judge found
that she failed to identify any regulatory requirement concerning the investigation
that the agency violated, much less show that any such error had a harmful effect
on the outcome of her case. ID at 25. He also rejected the appellant’s claim that
the agency’s failure to identify an effective date for her removal was harmful
error. Id. The administrative judge further found that the appellant failed to
show by preponderant evidence that her removal was motivated by discriminatory
animus based on her sex, or was taken in reprisal for her prior Board appeal, in
which the agency’s action was reversed on due process grounds. ID at 26-31.
The administrative judge found nexus based on the appellant’s failure to
follow instructions. ID at 31-32. Concerning the penalty, the administrative
judge determined that the agency desired the penalty of removal even in the event
that it established only one of the charges. ID at 32. He also determined that the
appellant failed to identify a valid comparator in support of her allegation of
disparate penalties. ID at 36. Ultimately, the administrative judge found that the
deciding official considered the relevant factors and that the penalty of removal
was within the tolerable limits of reasonableness. ID at 36-37. 4
In her petition for review,4 the appellant argues that the administrative
judge erred in failing to credit her testimony that she did not know of the
instructions to call 911 immediately when an employee shows any sign of heat
distress. Petition for Review (PFR) File, Tab 3 at 7-8. She asserts that the
administrative judge erred in rejecting her due process and harmful error claims,
and she reiterates her argument that the deciding official failed to consider the
relevant factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981). Id. at 11-14. As mitigating factors, the appellant cites evidence
that the trainee concealed information about his health condition, and contends
that her caring treatment of him shows that she has good potential for
rehabilitation. Id. at 14-15. She also argues that the administrative judge failed
to address certain errors in the agency’s processing of her removal and reiterates
her argument that the agency’s failure to provide an effective date for her removal
in its decision letter means that she was not legally removed from her position.
Id. at 15-17. The agency has filed a response to the appellant’s petition for
review and the appellant has filed a reply to the agency’s response. PFR File,
Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
In her petition for review, the appellant does not challenge the
administrative judge’s decision concerning the falsification charge. PFR File,
Tab 3 at 6; ID at 15-22. The agency also does not challenge this finding. We
agree with the administrative judge that the agency failed to establish either
specification of the falsification charge and we discern no reason to upset his
findings on this charge.
The agency established the unacceptable conduct charge.
The administrative judge found, and we agree, that the nature of the acts
alleged in support of the agency’s charge in this matter concerns a failure to
4 The appellant requested an extension of the time to file her petition for review, and the
Acting Clerk of the Board granted her request. Petition for Review File, Tabs 1-2. 5
follow instructions. ID at 5-6; IAF, Tab 8 at 18. An agency may prove a charge
of failure to follow instructions by establishing that (1) the employee was given
proper instructions and (2) the employee failed to follow the instructions, without
regard to whether the failure was intentional or unintentional. Archerda v.
Department of Defense , 121 M.S.P.R. 314, ¶ 16 (2014).
The administrative judge found that the agency established the charge. ID
at 5-14. As previously noted, in her petition for review, the appellant argues that
the administrative judge failed to credit her testimony that she did not know of
the instructions to call 911 immediately should an employee show any sign of
heat distress. PFR File, Tab 3 at 7-8. She notes that the administrative judge
found that her hearing testimony in the first appeal of her removal was credible,
and argues on review that she was cleared of any intentional misconduct. Id.
at 6-7. She further argues that the administrative judge failed to explain how he
could find that she did not act intentionally concerning the instructions to call
911, but still find that she failed to follow instructions. Id. at 7. For the
following reasons, we agree with the administrative judge.
Failure to follow supervisory instructions does not turn on proof of intent.
Hamilton v. U.S. Postal Service , 71 M.S.P.R. 547, 555-56 (1996). The
administrative judge found that the agency issued instructions concerning
heat-related illness, including the instruction to call 911 immediately, on
numerous occasions, including six times during the weeks preceding the June 16,
2016 incident at issue here. ID at 6-8. The record reflects that the agency sent
emails to all EAS-level employees in the CPD containing this instruction on May
24 and June 2, 8, 9, 13, and 15, 2016. Id.; IAF, Tab 8 at 49-52, 68-76, 79-80.
Based on those emails, the administrative judge found that the agency had
instructed the appellant to call 911 immediately when an employee shows signs of
heat-related symptoms. ID at 6-9. The administrative judge went on to find that,
based on the testimony before him, the appellant believed that the trainee was6
suffering from heat-related symptoms, but that she failed to call 911. ID
at 10-14.
Regardless of the appellant’s testimony that she did not know of the
instructions to call 911 immediately if an employee shows signs of heat distress,
we agree with the administrative judge that the agency established both elements
of the charge, i.e., that (1) it gave the appellant, who is an EAS-level employee in
the CPD, the instructions at issue, and (2) she failed to follow the instructions.
ID at 14; Archerda, 121 M.S.P.R. 314, ¶ 16.
Accordingly, we affirm the administrative judge’s finding that the agency
established the charge of unacceptable conduct.
The appellant failed to establish her affirmative defenses.
Due process
The appellant argued below that the agency violated her right to due
process because the deciding official failed to review and consider her response
to the notice of proposed removal. IAF, Tab 39 at 6-8. The administrative judge
rejected this claim, citing the deciding official’s statement in the decision letter
that he had received her “paperwork” concerning the notice of proposed removal.
ID at 24; IAF, Tab 8 at 13. The administrative judge found that the absence of
the attachments from the agency file did not constitute preponderant evidence that
the deciding official failed to review all of the appellant’s written response. ID
at 24. He also noted that the deciding official’s use of the term “paperwork” in
his decision letter to describe the appellant’s submission indicated that he had
received more than just her reply letter. Id.; IAF, Tab 8 at 13. Ultimately,
because preponderant evidence established that, at a minimum, the deciding
official considered the appellant’s lengthy and detailed response to the charges,
the administrative judge found that the appellant failed to establish that the
agency violated her right to due process. ID at 25; cf. Hodges v. U.S. Postal
Service, 118 M.S.P.R. 591, ¶ 6 (2012) (finding that a deciding official’s complete7
failure to consider an appellant’s written response before issuing a decision
constitutes a violation of minimum due process of law).
On review, the appellant reasserts her argument that the agency’s failure to
provide the attachments to her written reply with the agency file that it submitted
below means that the deciding official failed to review them before making his
decision. PFR File, Tab 3 at 11-12. She contends in her petition for review that
the administrative judge incorrectly concluded that the deciding official
considered all the relevant factors and that, as a result, he erroneously dismissed
her due process and harmful error defenses. Id. at 11-14. The administrative
judge, however, thoroughly analyzed the appellant’s due process claim, ID
at 22-25, and we agree that the evidence failed to show that the deciding official
completely failed to consider her written response, see Hodges, 118 M.S.P.R.
591, ¶ 6. Thus, the appellant failed to show that the administrative judge erred in
rejecting her due process claim.
Harmful error
In her petition for review, the appellant challenges the administrative
judge’s finding that the agency’s failure to specify an effective date for her
removal was not harmful error.5 ID at 3-4 n.5, 25; PFR File, Tab 3 at 16-17. The
administrative judge found that the decision letter definitively showed that the
agency took a removal action, and determined that the decision was effective the
date that the appellant received it. ID at 3-4 n.5. On review, the appellant cites
Lavelle v. Department of Transportation , 17 M.S.P.R. 8 (1983), in support of her
argument that the agency’s failure to specify an effective date for her removal
means that she was “never actually legally removed,” PFR File, Tab 3 at 16-17.
Lavelle, unlike the instant matter, concerns the issue of jurisdiction over the
5 As noted above, the appellant also alleged that the agency’s investigation of her
misconduct was flawed. IAF, Tab 40 at 14-15. The administrative judge rejected the
appellant’s claim, finding that she failed to identify any regulatory requirement
concerning the investigation that the agency violated, or show that any error in the
investigation had a harmful effect on its outcome. ID at 25. The appellant does not
challenge this finding on review, and we discern no reason to disturb it. 8
termination of an individual during a probationary period, specifically addressing
whether the appellants involved in that appeal had completed 1 year of current
continuous employment before the effective date of their terminations. Lavelle,
17 M.S.P.R. at 12-18. The record shows that the appellant has over 18 years of
Government service, and it does not reflect that she was serving in any sort of
probationary period when the agency removed her. IAF, Tab 1 at 1. Thus,
Lavelle is distinguishable from the instant appeal, and the appellant has not
demonstrated that the administrative judge erred in rejecting this affirmative
defense.
Sex discrimination
The administrative judge denied the appellant’s affirmative defense of sex
discrimination, determining that, based on the entirety of the evidence, she failed
to show that her removal was motivated by discriminatory animus. ID at 29 .
Although the appellant initially sought to contest this finding on review, she
subsequently withdrew her challenge as incorrect. PFR File, Tab 3 at 9, Tab 5
at 3. Thus, she does not challenge the administrative judge’s finding on her
affirmative defense of sex discrimination, and we discern no reason to disturb it.
Reprisal for her prior Board appeal
As noted above, this is the agency’s second attempt to remove the appellant
for the misconduct alleged herein because, as discussed above, the administrative
judge dismissed the first action on due process grounds. Belgum v. U.S. Postal
Service, MSPB Docket No. DE-0752-17-0120-I-2, Initial Decision (Dec. 12,
2017). The appellant contended in this appeal that the agency removed her in
retaliation for filing that prior appeal because both actions were close in time and
involved the same deciding official. IAF, Tab 39 at 6. To the extent that the
appellant is reiterating this claim on review, as discussed above, she has provided
no basis to disturb the administrative judge’s findings. For an appellant to prevail
on a contention of illegal retaliation for exercising her rights under 5 U.S.C.9
§ 2302(b)(9)(A)(ii), when, like here, she does not allege reprisal for equal
employment opportunity activity protected under Title VII, or seek to remedy
whistleblower reprisal, she must show the following: (1) she engaged in
protected activity; (2) the accused official knew of the activity; (3) the adverse
action under review could have been retaliation under the circumstances; and
(4) there was a genuine nexus between the alleged retaliation and the adverse
action. See Warren v. Department of the Army , 804 F.2d 654, 656-58 (Fed. Cir.
1986).
The administrative judge found that it was not unusual or wrongful for the
agency to bring a new removal action when the first one was reversed on
procedural grounds. ID at 31. We agree with the administrative judge that the
appellant failed to show a genuine nexus between the alleged retaliation and the
agency’s second attempt to remove her. Warren, 804 F.2d 654, 658; ID at 31.
Moreover, the Board has long held that it is not unusual or wrongful for an
agency to do exactly what happened here—pursue another adverse action based
on the same charges following the reversal of an action on procedural grounds.
Litton v. Department of Justice , 118 M.S.P.R. 626, ¶ 12 (2012); Steele v. General
Services Administration , 6 M.S.P.R. 368, 372 (1981).
Thus, we affirm the administrative judge’s findings concerning the
appellant’s affirmative defenses.
The agency established nexus and the reasonableness of the penalty.
The administrative judge found that there is an obvious nexus between the
failure to follow instructions and the efficiency of the service. ID at 31-32. The
Board has long held this to be true. See Blevins v. Department of the Army ,
26 M.S.P.R. 101, 104 (1985) (finding that a failure to follow instructions or abide
by requirements affects an agency’s ability to carry out its mission), aff’d,
790 F.2d 95 (Fed. Cir. 1986) (Table). The parties do not challenge this finding
on review, and we discern no reason to disturb it. Concerning the penalty, the
administrative judge found that the deciding official considered the relevant10
factors, and he determined that the penalty did not exceed the bounds of
reasonableness. ID at 36-37.
In her petition for review, the appellant challenges the administrative
judge’s analysis regarding her claim that the agency treated her more harshly than
other similarly situated individuals. Specifically, she argues that the accident
reports that she submitted below identify comparators who also failed to call 911
under similar circumstances, but were not disciplined at all. PFR File, Tab 3
at 8-9, 11, 13-14; IAF, Tab 20 at 14, Tab 30. The administrative judge discussed
the accident reports and he found that, based on the appellant’s statement that
none of the EAS employees involved in those heat-related accident reports were
disciplined, the appellant failed to identify any valid comparators. ID at 36. The
appellant argues that the administrative judge improperly relied on a
nonprecedential Board decision6 to dispose of her claim on the erroneous basis
that a proper comparator must actually be charged with misconduct. PFR File,
Tab 3 at 10; ID at 36.
An employee need not have been disciplined to be a valid comparator
because “evidence regarding similarly-situated employees who received no
discipline after committing similar misconduct would also support [a] disparate
penalty claim.” Miskill v Social Security Administration , 863 F.3d 1379, 1384
(Fed. Cir. 2017) (quoting Fearon v. Department of Labor , 99 M.S.P.R. 428, ¶ 11
(2005)). Rather, the universe of potential comparators should be limited to those
employees whose misconduct and/or other circumstances closely resemble those
of the appellant . Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13. Thus, we
agree with the appellant that the administrative judge erred in finding that a
potential comparator must actually be charged with misconduct.
6 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).11
As the Board held in Singh, the relevant inquiry is whether the agency
knowingly and unjustifiably treated employees differently. Id., ¶ 14; see Facer v.
Department of the Air Force , 836 F.2d 535, 539 (Fed. Cir. 1988) (providing that a
person does not have a legally protected interest in the evenness of a misconduct
penalty assessed on him compared to that assessed on others unless employees are
knowingly treated differently “in a way not justified by the facts, and
intentionally for reasons other than the efficiency of the service”). Here, because
the appellant failed to show that the agency knowingly and unjustifiably treated
any of her alleged comparators differently, she failed to establish that she was
disparately punished, and the administrative judge’s error did not prejudice her.
Singh, 2022 MSPB 15, ¶ 14; 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).
In her petition for review, the appellant first identifies an accident report
that she contends shows that a Postmaster with the same first-line supervisor, who
served as the proposing official in the instant matter, was not disciplined under
similar circumstances. PFR File, Tab 3 at 9; IAF, Tab 30 at 57-58. She argues
that this accident report shows that the Postmaster involved did not call 911 when
an employee complained of heat-related distress and instead took the employee to
the emergency room himself. PFR File, Tab 3 at 9. However, this incident
occurred in July 2015. Id. The administrative judge found that the emails which
the agency sent beginning in June 2016, instructing all EAS-level employees in
the CPD to call 911 immediately when anyone shows signs of heat-related illness,
changed and superseded the guidance issued by the CPD in 2015, which did not
instruct employees to call 911 immediately. ID at 8-9. Because this particular
incident happened under the prior 2015 guidance, and not under the 2016
instruction requiring EAS-level employees to call 911 immediately when anyone
shows signs of heat-related illness, the employee is not a proper comparator. 12
The appellant also argues on review that another of the accident reports she
submitted involved a Postmaster who reported to the District Manager of the
CPD, who was the individual who sent some of the emailed instructions to call
911 immediately when anyone shows signs of heat-related illness. PFR File,
Tab 3 at 11; ID at 6-8; IAF, Tab 8 at 49-50, Tab 30 at 12-13. However, the
District Manager did not serve as the proposing or deciding official in this matter,
IAF, Tab 8 at 13-21, and the record does not show that he had any involvement in
disciplining the appellant. More importantly, the record does not show that the
proposing or the deciding officials knowingly treated the appellant differently
from other employees at the time they proposed and decided the instant matter.
IAF, Tab 30. In fact, the deciding official wrote in his penalty analysis that he
was “unaware of any other postmaster who has failed to follow the District
Manager’s instructions regarding heat-related illness.” IAF, Tab 8 at 15. A
crucial part of the relevant inquiry is whether the agency knowingly treated
employees differently. See Singh, 2022 MSPB 15, ¶ 14. Because the evidence
does not indicate that the proposing and deciding officials knowingly and
unjustifiably treated the appellant differently, the appellant has failed to meet her
burden of showing that the agency treated her more harshly than other similarly
situated individuals. Id.
Concerning the reasonableness of the penalty, the appellant contends on
review that the administrative judge incorrectly concluded that the deciding
official considered all the relevant factors. PFR File, Tab 3 at 11-14. As
previously noted, the appellant argues that the deciding official failed to consider
some mitigating factors, i.e., that the trainee concealed information about his
medical condition and that she treated him with due care and respect. Id.
at 14-15. The administrative judge found that the decision letter sufficiently set
forth the deciding official’s analysis. ID at 33 n.19; IAF, Tab 8 at 14-15. While
the deciding official did not discuss the mitigating factors that the appellant
identifies on review, PFR File, Tab 3 at 14-15; IAF, Tab 4 at 14-15, the13
administrative judge discussed them when considering the merits of the appeal,
ID at 13-14. He found that the trainee’s preexisting medical conditions did not
excuse the appellant’s failure to call 911 because she was unaware of them and
should therefore have perceived the trainee’s symptoms as heat-related. ID at 14.
He also discussed exactly what the appellant did for the trainee in response to his
symptoms—providing fluids and popsicles to cool him down and acquiescing to
his request not to call 911. ID at 13-14. We agree with the administrative judge
that the trainee’s preexisting medical conditions, even if the appellant was not
aware of them, do not mitigate her failure to follow the instruction. The appellant
is not a medical professional, and is therefore in no position to second-guess the
instruction. For the same reason, her attempts to address the appellant’s
symptoms, although arguably compassionate, undermined the agency’s clear
instructions to call 911 to seek medical help immediately when anyone exhibits
signs of heat-related illness. Thus, under the circumstances present, we find that
the mitigating effect of these factors is minimal, and is outweighed by the
severity of the appellant’s misconduct.
Thus, we find that the deciding official’s penalty analysis was thorough and
reasonable and that the appellant’s arguments on review do not provide any basis
to mitigate the penalty. PFR File, Tab 3 at 11-14; IAF, Tab 8 at 14-15; see
Douglas, 5 M.S.P.R. at 305-06 (setting forth the factors to be considered in
determining the reasonableness of an agency’s penalty determination). 14
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any16
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s17
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Belgum_ChristineDE-0752-18-0206-I-1__Final_Order.pdf | 2024-07-11 | CHRISTINE BELGUM v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-18-0206-I-1, July 11, 2024 | DE-0752-18-0206-I-1 | NP |
997 | https://www.mspb.gov/decisions/nonprecedential/Garza_IsraelSF-3443-19-0114-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISRAEL GARZA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-3443-19-0114-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Israel Garza , American Canyon, California, pro se.
Deborah C. Winslow-Portillo , Esquire, 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
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant is employed with the agency as a Building Equipment
Mechanic. Initial Appeal File (IAF), Tab 7 at 31. In this appeal, he asserted that
agency management and medical staff had conspired to “lock [him] out” during
his employment at the agency’s San Francisco Processing and Distribution Center
(P&DC) in 2005 and forced him to use up his sick leave. IAF, Tab 1 at 3.
Nevertheless, he subsequently went back to work and transferred to the
Sacramento P&DC. Id. The appellant also claimed that he is a 10-point veteran,
and that the accounting for his “military time” had disappeared from his benefits
statement. Id. at 3-4. It appears that, in November 2016, the agency adjusted his
retirement computation date from November 12, 1983, to April 30, 1984, due to a
prior error in crediting his service under the Civil Service Retirement System.
IAF, Tab 7 at 32. He did not request a hearing.
The administrative judge issued an acknowledgment order giving the
appellant notice of his burden to establish Board jurisdiction over his appeal.
IAF, Tab 2. In his response, he reiterated that he is a 10 -point disabled veteran,
and asserted that he is Mexican -American. IAF, Tab 4. He did not claim that the2
agency discriminated against him on the basis of his military service or his
nationality. Id.
Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID). Acknowledging the
appellant’s claim that he is a 10-point disabled veteran, the administrative judge
observed that he provided no documentation that would support a finding that he
is preference eligible. ID at 3. Nevertheless, he found that, even if the appellant
established that he is entitled to veteran’s preference, the matters that he sought
to appeal are not within the Board’s jurisdiction, and without an otherwise
appealable action, the Board also lacks jurisdiction over the appellant’s
discrimination claim. ID at 3-4.
In his petition for review, the appellant essentially reiterates the allegations
he made below, including the assertion that he has a 10% disability rating from
the Department of Defense, but he does not offer any documentation in support of
his claim. Petition for Review (PFR) File, Tab 1. He explains that his reference
to “military time” concerned “military buyback time,” which he remembers
paying in 1985 or 1986, but he now asserts that his reference to it was a mistake.
Id. at 2. The agency has filed a response to the appellant’s petition for review,
and the appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The record does not show that the agency took an appealable adverse action
against the appellant. Although the appellant alleged he was “locked out” of his
prior duty station, requiring him to use sick leave, he provides no details such as
the length or circumstances of his absence. IAF, Tab 1 at 3. Further, he appears
to have transferred to another facility. Id. In any event, the Board lacks
jurisdiction over any alleged adverse action because the appellant failed to prove
that he is an employee with adverse action appeal rights. 3
A U.S. Postal Service employee has a right to appeal an adverse action to
the Board if he (1) is a preference eligible, a management or supervisory
employee, or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity, and (2) has completed 1 year of current
continuous service in the same or similar positions. 39 U.S.C. § 1005(a)(4)(A);
5 U.S.C. § 7511(a)(1)(B)(ii); Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404,
¶ 17 (2016).2 The administrative judge found that the appellant was not
preference eligible because, notwithstanding his assertion of a 10-point disability
rating, he provided no documentation supporting his claim.3 ID at 3. We agree.
A preference eligible is, as relevant here, either an individual who served
on active duty during certain designated periods, other than active duty for
training, or who is a disabled veteran. 5 U.S.C. § 2108(3)(A)-(C); 38 U.S.C.
§ 101(21)(A). The record indicates that the U.S. Air Force Reserve certified that,
following the appellant’s service from April 15 to October 4, 1985, he received
an “Honorable Release from Active Duty for Training,” and that he had “[n]o
2 The administrative judge did not provide proper jurisdictional notice as to what the
appellant must do to establish that he is an employee entitled to appeal an adverse
action to the Board. IAF, Tab 2; 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).
Nonetheless, the lack of Burgess notice did not prejudice the appellant’s substantive
rights because the agency’s response and the initial decision notified him which Postal
Service employees have the right to appeal an adverse action to the Board. IAF, Tab 7
at 10-11; see Hamilton, 123 M.S.P.R. 404, ¶ 17 n.10 (finding that a lack of Burgess
notice did not prejudice an appellant’s substantive rights because her pleadings
demonstrated that she was aware of the jurisdictional prerequisites for establishing that
she was a postal employee with appeal rights, and the initial decision also provided this
information); see also Easterling v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11 (2008)
(finding that an administrative judge’s failure to provide an appellant with proper
Burgess notice can be cured if the agency’s pleadings or the initial decision provides
information on what is required to establish an appealable jurisdictional issue, thus
affording the appellant an opportunity to meet his jurisdictional burden on petition for
review).
3 The appellant did not claim below or on review that he was a management or
supervisory employee, or an employee engaged in personnel work in any capacity
whatsoever. Nor does the record suggest that the agency employed him in any such
positions. Thus, we need not analyze these factors. 4
active service for other than training purposes” as of the date of the certificate,
September 16, 2016. IAF, Tab 7 at 33, 37. The agency explained that it
corrected the appellant’s retirement computation date because its Employee and
Labor Relations Manual provides that only “honorable active service” in the
Armed Forces of the United States may be creditable for retirement purposes. Id.
at 8, 43.
To make a nonfrivolous allegation that he is preference eligible, especially
when, as here, the record indicates a lack of such status, the appellant must make
more than a bare assertion without supporting evidence. See Bergon v. U.S.
Postal Service, 64 M.S.P.R. 228, 231 n.5 (1994) (finding that an appellant must
provide documentation of his preference eligibility to raise a nonfrivolous
allegation entitling him to further proceedings on the matter), aff’d sub nom.
Rafferty v. U.S. Postal Service , 74 F.3d 1260 (Fed. Cir. 1996) (Table) (per
curiam). The appellant asserted he was preference eligible based on a
service-connected disability. IAF, Tab 1 at 3. In the initial decision, the
administrative judge advised the appellant that he should substantiate his claim
with documentation from the Department of Veterans Affairs. ID at 4. On
review, the appellant has not done so. Because the appellant failed to provide any
documentation in support of his claim that he is preference eligible, we find that
he failed to make a nonfrivolous allegation of such. Thus, we agree with the
administrative judge that he failed to establish jurisdiction over any alleged
adverse action.
The appellant asserted information implying claims of prohibited personnel
practices, i.e., discrimination and reprisal for alleged protected disclosures and
activities. IAF, Tab 1 at 3-4, Tab 4 at 1, Tab 9 at 1-2. However, absent an
otherwise appealable action, the Board lacks jurisdiction over the appellant’s
discrimination claims. See 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, 871-735
(D.C. Cir. 1982). Further, the Board does not have independent jurisdiction over
the appellant’s retaliation claims because, as a Postal Service employee, he is not
entitled to corrective action under 5 U.S.C. § 1221. See Hess v. U.S. Postal
Service, 123 M.S.P.R. 183, ¶ 9 (2016) (finding that an administrative judge
properly dismissed an appellant’s affirmative defense of whistleblower reprisal as
moot after the agency rescinded her removal because, as a Postal Service
employee, the appellant was not entitled to corrective action).
As noted above, the appellant asserts in his petition for review that the
reference to his “military buyback time” was mistaken. PFR File, Tab 1 at 2.
Among other things, the administrative judge gave the appellant general notice in
the acknowledgment order that he may have a claim under the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA)
(codified as amended at 38 U.S.C. §§ 4301-4335). IAF, Tab 2 at 2-3. He also
gave the appellant more detailed notice about filing a discrimination claim under
USERRA in the initial decision. ID at 4. Nevertheless, the appellant did not
indicate that he sought to pursue such a claim in his appeal below or on review.
However, two types of claims arise under USERRA: (1) reemployment
cases, in which the appellant claims that an agency has not met its obligations
under 38 U.S.C. §§ 4312-4318 following the appellant’s absence from civilian
employment to perform uniformed service; and (2) so-called “discrimination”
cases, in which the appellant claims that an agency has taken an action prohibited
by 38 U.S.C. § 4311(a) or (b). Clavin v. U.S. Postal Service , 99 M.S.P.R. 619,
¶ 5 (2005). As noted above, the appellant received notice of how to establish
jurisdiction over the second type of claim, i.e., that the agency denied the
appellant a benefit of employment due to his military service. ID at 4. The
administrative judge did not give the appellant notice of what he must allege to
establish jurisdiction over a USERRA reemployment claim. An employee whose
absence from his civilian position is necessitated by military service is entitled to
reemployment rights and benefits under USERRA if: (1) the employee or the6
military provided the employer with advance notice; (2) the cumulative absence
does not exceed 5 years; and (3) the employee requests reemployment in the
prescribed manner and timeframe. 38 U.S.C. § 4312(a); Woodman v. Office of
Personnel Management , 258 F.3d 1372, 1376 (Fed. Cir. 2001). If the uniformed
service exceeded 90 days, the returning employee is entitled to reemployment to
the position in which he would have been employed if his continuous employment
had not been interrupted by such service, or a position of like seniority, status,
and pay, the duties of which he is qualified to perform. Rassenfoss v. Department
of Treasury, 121 M.S.P.R. 512, ¶ 14 (2014). The employee is also entitled to the
same rights and benefits generally provided to employees having similar
seniority, status, and pay who are on furlough or leave of absence. Id., ¶ 15.
Those right and benefits may include the right to make a payment, and
receive service credit, for periods of military service during which the
agency designated the employee as in a leave without pay status. See
Whittacre v. Office of Personnel Management , 120 M.S.P.R. 114, ¶¶ 10-11 (2013)
(so finding in the context of the Federal Employees’ Retirement System).
The appellant alleged below, and restates on review, that the agency forced
him in 2005 to use all of the sick leave he had accumulated since 1983. IAF,
Tab 1 at 3; PFR File, Tab 1 at 1. However, has not claimed that the use of this
sick leave was an improper denial of reemployment rights arising from his
1983-1984 military service. IAF, Tab 1 at 3; PFR File, Tab 1 at 1. In addition,
he no longer asserts that he was improperly denied retirement credit for his
military service or the right to “buy back” military time. PFR File, Tab 1 at 2.
Thus, we conclude, at this point, that he is not alleging a denial of his USERRA
reemployment rights. Nonetheless, we observe that there is no time limit for the
filing of a direct appeal under USERRA. Gossage v. Department of Labor ,
118 M.S.P.R. 455, ¶ 9 n.4 (2012). If the appellant wishes to raise a USERRA
reemployment claim, he may, as the administrative judge observed, file a new7
USERRA appeal. ID at 4; see Ellis v. Department of the Navy , 117 M.S.P.R. 511,
¶ 11 (2012).
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. 8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Garza_IsraelSF-3443-19-0114-I-1__Final_Order.pdf | 2024-07-11 | ISRAEL GARZA v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-3443-19-0114-I-1, July 11, 2024 | SF-3443-19-0114-I-1 | NP |
998 | https://www.mspb.gov/decisions/nonprecedential/Muhammad_IngridDA-844E-20-0237-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
INGRID MUHAMMAD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-844E-20-0237-I-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ingrid Muhammad , New Orleans, Louisiana, 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.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) dismissing her Federal Employees’ Retirement System (FERS) disability
retirement application as untimely filed. 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).
disputes the administrative judge’s assertion in the prehearing conference
summary that she did not appear for the scheduled conference, reargues that she
is entitled to a waiver of the reconsideration decision filing deadline because she
has depression and anxiety and has been mentally impaired since 2017, and
requests that an attorney be appointed to represent her in 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. 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).
Regarding the appellant’s allegation that the administrative judge
incorrectly stated that she did not appear for the telephonic prehearing conference
call on May 12, 2020, and that she waited on the call for 73 minutes and
48 seconds “to no avail,” the appellant is correct in her assertion. Petition for
Review File, Tab 1 at 2. In an April 14, 2020 hearing order, the administrative
2 In a letter rejecting the appellant’s pleading, the Office of the Clerk of the Board
noted that the appellant filed a pleading via facsimile during the afternoon of August 2,
2020, which was before the agency filed its response to the petition for review later that
same evening. Petition For Review File, Tab 4 at 1. Because the appellant’s pleading
was filed before the agency’s response, the Clerk’s Office reasoned that it could not
have been a reply to the response, so it rejected the pleading and provided the appellant
with 10 days to file her reply. Id. The appellant did not file any subsequent pleadings.2
judge set the time and date for the prehearing conference call for “ May 12, 2020,
at 10:00 a.m., CDT. ” (emphasis in original). Initial Appeal File (IAF), Tab 8
at 4. In a May 12, 2020 pleading filed the same day as the scheduled prehearing
conference, the agency averred that “the appellant and the OPM representative
were both on the phone line for about 20 minutes today” and that “[t]he judge did
not join[] us while we were waiting.” IAF, Tab 11 at 3. The agency noted that it
appeared that there was a “mix up or technical difficulty,” since the
administrative judge’s order and summary indicated that neither party was in
attendance, and the agency requested that the administrative judge take that
information into consideration. Id. Consequently, it appears that the
administrative judge erred in concluding that the appellant was not present at the
prehearing status conference. Nevertheless, any such error was immaterial to the
outcome of the appeal because in the conference summary order the
administrative judge summarized the issues that would have been addressed in the
prehearing conference if it had been held, provided accurate information
regarding the appellant’s burden on the timeliness issue, and provided the parties
with the opportunity to continue to supplement the record up until the record
closed after the hearing. IAF, Tab 10 at 1-3. The hearing was subsequently held,
and the initial decision was based on the entire record. Accordingly, we discern
no prejudice to the appellant’s substantive rights based on this misstatement. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that
an adjudicatory error that was not prejudicial to a party’s substantive rights
provided no basis for reversing an initial decision).
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.3
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
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.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | Muhammad_IngridDA-844E-20-0237-I-1__Final_Order.pdf | 2024-07-11 | INGRID MUHAMMAD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-20-0237-I-1, July 11, 2024 | DA-844E-20-0237-I-1 | NP |
999 | https://www.mspb.gov/decisions/nonprecedential/Brown_Tracy_S_AT-0845-19-0329-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY S. BROWN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-19-0329-C-1
DATE: July 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracy S. Brown , Suffolk, Virginia, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement of a settlement agreement
with the Office of Personnel Management (OPM) regarding collection of an
overpayment of her Federal Employees’ Retirement System (FERS) annuity.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
On petition for review, the appellant reasserts her argument from below, claiming
that, because OPM had refunded amounts previously withheld from her annuity to
collect portions of the overpayment and indicated in a November 2019 Notice of
Annuity Adjustment that it was no longer withholding funds from the appellant’s
annuity, its decision to resume collection of the overpayment at a later date
constituted a breach of the parties’ settlement agreement. Petition for Review
(PFR) File, Tab 1 at 6. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the terms of the parties’
April 22, 2019 settlement agreement did not reflect that OPM agreed to waive the
overpayment. The agreement explicitly provided for the collection and
repayment of the overpayment amount through monthly installments. Therefore,
the appellant failed to establish that OPM breached the settlement agreement by
resuming its collection of the overpayment in monthly installments. Brown v.
Office of Personnel Management , MSPB Docket No. AT -0845-19-0329-C-1,
Compliance File (CF), Tab 4, Compliance Initial Decision (CID) at 2; see
Rodriguez v. Department of Justice , 84 M.S.P.R. 685, ¶ 7 (2000) (stating that a2
party is entitled to no more than is provided by the terms of a settlement
agreement). To the extent the appellant argued below that the agency’s
November 2019 Notice of Annuity Adjustment, wherein it stated that it was “no
longer withholding the annuity overpayment,” constituted a modification of the
settlement agreement terms, the administrative judge does not appear to have
addressed this argument. CID. Because the appellant raises it again on review,
PFR File, Tab 1 at 6, we address it here.
The Board has stated that a settlement agreement is a contract, and a
contract may be modified if there is mutual assent to the modification. See
Carson v. Department of Energy , 77 M.S.P.R. 453, 458 (1998). We find that the
record does not evidence any mutual assent to a modification of the settlement
agreement. The November 2019 notice does not reference the settlement
agreement. Nor does the notice claim that it was intended to override or amend
the terms of the settlement agreement. CF, Tab 1 at 5. There is no other
evidence in the record, such as correspondence between the parties, setting forth
their intent that the settlement agreement be modified to provide for a waiver of
the overpayment. CF, Tabs 1, 3; PFR File, Tabs 1, 4.
Importantly, even assuming that both parties believed that the
November 2019 Notice of Annuity Adjustment effectively modified the terms of
the settlement agreement, for a term to be enforceable, there must be
consideration, i.e., a performance or a return promise that must be bargained for.
See Black v. Department of Transportation , 116 M.S.P.R. 87, ¶ 17 (2011). Here,
there is no evidence that, following the execution of the April 22, 2019 settlement
agreement, the parties later bargained for a waiver term so as to bind themselves
to a modified contract. CF, Tabs 1, 3; PFR File, Tabs 1, 4. Without any
documentation evidencing the intent of the parties to modify the April 22, 2019
settlement agreement, or consideration to support that intent, the Board lacks the
authority to unilaterally read into the settlement agreement a modification of its
material terms. See Rodriguez, 84 M.S.P.R. 685, ¶ 7. As such, the3
November 2019 Notice of Annuity Adjustment does not have an effect on the
terms of the April 22, 2019 settlement agreement, nor does it show that OPM
breached that agreement.2
The appellant submits with her petition for review bank records purporting
to show her transaction history, including deposits of her FERS annuity. PFR
File, Tab 1 at 4-5. These documents were not submitted below. CF, Tab 1.
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. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211,
213-14 (1980). Here, the appellant’s bank records appear to have been accessed
on December 12, 2019. PFR File, Tab 1 at 4-5. The record closed below on or
around July 6, 2020. CF, Tab 2 at 4, Tab 3. Therefore, the documents submitted
for the first time on review were available before the record closed, and the
appellant has not explained why she was unable to submit them below. PFR File,
Tab 1. Therefore, we have not considered them.
Based on the foregoing, we deny the appellant’s petition for review and
affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 The Board lacks jurisdiction to address in this settlement enforcement proceeding
whether, independent of the parties’ agreement, OPM’s statement that it was no longer
withholding funds from the appellant’s annuity constituted a waiver of the
overpayment. To the extent that the appellant is arguing that OPM waived its right to
resume collection of the overpayment, she needs to raise that with OPM, and the Board
can only address it following issuance of a final decision by OPM. See 5 U.S.C.
§ 8461(e)(1); 5 C.F.R. § 841.308.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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.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 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 | Brown_Tracy_S_AT-0845-19-0329-C-1__Final_Order.pdf | 2024-07-11 | TRACY S. BROWN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-19-0329-C-1, July 11, 2024 | AT-0845-19-0329-C-1 | NP |
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