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40 | https://www.mspb.gov/decisions/precedential/SOTO_JAVIER_AT_1221_15_0157_W_1_OPINION_AND_ORDER_1917859.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 6
Docket No. AT-1221 -15-0157 -W-1
Javier Soto,
Appellant,
v.
Department of Veterans Affairs,
Agency.
April 20, 2022
Joyce E. Kitchens , Esquire, Atlanta, Georgia, for the appellant .
Kristin Langwell , Esquire, St . Petersburg, Florida, for the agency .
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under 5 U.S.C. § 1221 (e). For the reasons
set forth below, we GRANT the appellant’s petition and REMAND this matter for
further adjudication c onsistent with this Opinion and Order.
BACKGROUND
¶2 The appellant, a reemployed annuitant, occupied the GS -0996 -12 Ratings
Veterans Service Representative position with the agency’s Vete rans Service
Center in Orlando, Florida. Initial Appeal File (IAF), Tab 5 at 127. By notice
dated June 30, 2014, the deciding official, who was the Director of the
St. Petersburg Regional Office, separated the appellant from his position and the
2
Federal service, stating without elaboration that his “services [were] no longer
required.” Id. at 27-28. The following day , the appellant sought corrective action
from the Office of Special Counsel (OSC). IAF, Tab 7 at 10-18. He alleged that
his separation wa s in reprisal for protected disclosures contained in two Quality
Review Team (QRT) Studies, and for various grievances and complaints he filed
in his capacity as Executive Vice President of the American Federation of
Government Employees (AFGE) Local 1594. IAF, Tabs 28-42.
¶3 While the OSC complaint was pending, the deciding official prepared a
memorandum, dated September 22, 2014, setting forth her reasons for separating
the appellant. IAF, Tab 4 at 55-57. Her stated reasons were that the appellant
had e ngaged in misconduct involving his attendance and work schedule at an
April 2014 equal employment opportunity training and a May 2014 training with
AFGE, and had improperly claimed case credit by making duplicate entries in the
agency’s Automated Standardi zed Performance Elements Nationwide database in
June 2014. Id. The deciding official explained that, during th is 3-month period,
the appellant was dishonest and misled management, refused to follow
instructions, and demonstrated a lack of integrity. Id. at 57. She further stated —
apparently, unbeknownst to her, incorrectly —that removal was the only
disciplinary option available, because, as a reemployed annuitant, the appellant
was “excluded from the legal authority to admonish, reprimand or suspend.” Id.
¶4 By letter dated September 30, 2014, OSC informed the appellant that it had
completed its investigation, and advised him of his right to file an individual right
of action (IRA) appeal with the Board. IAF, Tab 1 at 14-15. The appellant filed
a timely IRA appeal on November 18, 2014. IAF, Tab 1. Following a hearing,
the administrative judge issued an initial decision denying the appellant’s request
for corrective action. IAF, Tab 75, Initial Decision (ID). As a preliminary
matter, he found that the appellant had establishe d Board jurisdiction concerning
his claims that the agency separated him in reprisal for protected disclosures
under 5 U.S.C. § 2302 (b)(8) and protected activity under 5 U.S.C.
3
§ 2302 (b)(9)(A)(i) and (B).1 ID at 3-6. Turning to the merits, the administrative
judge found that, assuming the appellant’s comments in the QRT Studies were
protected disclosures, he failed to show that they were a contributing factor in his
separation. ID at 8-12. The administrative judge further found that the appellant
failed to prove that he participated in activity protected under 5 U.S.C.
§ 2302 (b)(9)(A)(i), because the grievances he had filed on his own behalf did not
include allegations of whistleblowing reprisal under 5 U.S.C. § 2302 (b)(8). ID
at 12-14. However, t he administrative judge found that some of the appellant’s
representational activities on behalf of other employees were both protected under
5 U.S.C. § 2302 (b)(9)(B) and a contributing factor in his separation. ID at 14-22.
After conducting an analysis of the factors identified in Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999), the administrative judge
determined that the agency had met its burden of proving by clear and convincing
evidence that it would have separated the appellant in the absence of his protected
activity . ID at 22-51.
¶5 This petition for review followed. Petition for Review (PFR) File, Tab 1.
On review, the appellant does not contest the findings below concerning his
claims under 5 U.S.C. § 2302(b)(8) and (b)(9)(A)(i), but he contends that the
administrative judge should have found that he engaged in two additional
protected activities under 5 U.S.C. § 2302 (b)(9)(B). Id. at 32-33. He f urther
argues that, contrary to the findings in the initial decision, the agency failed to
show by clear and convincing evidence that it would have separated him in the
1 The Board has long held that reemployed annuitants enjoy the protections of 5 U.S.C.
§ 2302 , unless explicitly excluded from coverage by 5 U.S.C. § 2302 (a)(2)(B)(i) or (ii).
Acting Special Counsel v. U.S. Customs Service , 31 M.S.P.R. 342, 346 -47 (1986). We
agree with the administrative judge that there is nothing in the statutory language of the
Whistleblower Protection Enhanc emen t Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465, to suggest that the Board’s jurisdiction over IRA appeals would not extend to
reemployed annuitants claiming reprisal for protected activity under 5 U.S.C.
§ 2302 (b)(9)(A)(i) or (B). ID at 5-6.
4
absence of his protected activity. Id. at 4-31. He also provides medical
documentatio n concerning a witness, the President of AFGE Local 1594, on the
theory that her health condition explains behavior upon which the admin istrative
judge relied in making an adverse credibility determination against her. Id. at 16,
36-38; ID at 41-42. The agency has filed a response, to which the appellant has
replied. PFR File, Tabs 3-4.
ANALYSIS
The appellant failed to show that his new claims that he engaged in additional
activity are protected under 5 U.S.C. § 2302 (b)(9)(B).
¶6 Under 5 U.S.C. § 2302 (b)(9)(B), it is a prohibited personnel practice to take
a personnel action against an employee “because of [the employee] testifying for
or otherwise lawfully assisting any individual” in “the exercise of any appeal,
complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C.
§ 2302 (b)(9)(A) -(B). In deciding the merits of a claim that an agency took a
personnel action in violation of 5 U.S.C. § 2302 (b)(9)(B), the Board will analyze
the claim under the burden -shifting framework set forth at 5 U.S.C. § 1221 (e).
Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 13 (2015) . First, the
Board will determine whether the appellant has established by preponderant
evidence2 that he was involved in protected activity under 5 U.S.C.
§ 2302 (b)(9)(B). Alarid , 122 M.S.P.R. 600, ¶ 13. Next, the Board will determine
whether the appellant’s participation in the protected activity was a contr ibuting
factor in the challenged personnel action at issue. Id. One way of proving that an
appellant’s protected activity was a contributing factor in a personnel action is the
“knowledge/timing” test, which is satisfied by showing that the responsible
agency official knew of the protected activity and took the personnel action
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true t han untrue. 5 C.F.R. § 1201.4 (q).
5
within a period of time such that a reasonable person could conclude that the
protected activity was a contributing factor in the action. Id.; see 5 U.S.C.
§ 1221 (e)(1). If the appellant makes both of these showings by preponderant
evidence, the burden of persuasion shifts to the agency to prove by clear and
convincing evidence that it would h ave taken the same action in the absence of
the appellant’s protected activity.3 Alarid , 122 M.S.P.R. 600, ¶ 14.
¶7 An appellant can establish that he engaged in protected activity under
5 U.S.C. § 2302 (b)(9)(B) by proving that he testified or otherwise lawfully
assisted another employee in “any appeal, complaint, or grievan ce right granted
by any law, rule, or regulation.” 5 U.S.C. § 2302 (b)(9)(A); Alarid , 122 M.S.P.R.
600, ¶ 13. The Board has interpreted the term “appeal, complaint, or grievance”
to mean an initial step toward taking legal action against the agency for a
perceived violation of employment rights. See Graves v. Department of Veterans
Affairs , 123 M.S.P.R. 434, ¶¶ 18-19 (2016); Linder v. Department of Justice ,
122 M.S.P.R. 14, ¶¶ 9-11 (2014). Performing union -related duties in support of
another employee’s appeal, complaint, or grievance may constitute protected
activity under 5 U.S.C. § 2302 (b)(9)(B). See Carney v. Department of Veterans
Affairs , 121 M.S.P.R. 446, ¶ 6 (2014) (finding that representing an agency
employee during an inf ormal grievance meeting falls under the pro tective
umbrella of the statute).
¶8 The administrative judge found below that the fo llowing activities were
both protected under 5 U.S.C. § 2302 (b)(9)(B) and a contributing factor in the
appellant’s separation: (1) a March 2014 discussion with the deciding official
3 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of a trier of fact a firm belief as to the allegations sou ght to be established.
5 C.F.R. § 1209 .4(e). Section 1221(e)(2) does not explicitly state that the clear and
convincing evidence test applies to claims of retaliation for protected activity under
5 U.S.C. § 2302 (b)(9)(B), because it only addresses disclosures , which are covered by
subsection (b)(8), but the Board has consistently adopted that interpretation. See
Alarid , 122 M.S.P.R. 600, ¶ 14; 5 C.F.R. § 1209.7 (b).
6
regarding the venue of a grievance meeting; (2) a May 20, 2014 third -step
grievance filed against an official in the agency’s West Palm Beach location,
alleging improper management interference with union representation of an
unnamed bargaining -unit member regarding a p erformance improvement plan
(PIP); (3) a May 23, 2014 third -step grievance filed against Human Resources
Management (HRM), concerning a dispute over requests for information (RFIs)
regarding the PIPs of two bargaining -unit members; (4) a June 10, 2014 thir d-step
grievance alleging that management failed to include AFGE in an unnamed
bargaining -unit member’s PIP meeting; and (5) a June 10, 2014 third -step
grievance against the Chief of HRM, alleging continued delay in responding to
RFIs concerning the PIPs for the two bargaining -unit members. ID at 14-22; IAF,
Tab 40 at 32-33, Tab 41 at 10-11, 43 -44, 55 -56, Tab 51 at 14-18. On review, the
appellant contends that the administrative judge should have found that the
following activities also were protected: (1) an April 16, 2014 reply to the
proposed admonishment of a bargaining ‑unit member; and (2) a May 23, 2014
memorandum to the deciding official objecting to HRM’s response to a n RFI
concerning the PIPs of the two bargaining -unit members. IAF, Tab 40 at 32-33;
ID at 16-21; IAF, Tab 39 at 64-72, Tab 40 at 4-13, Tab 41 at 66-67.
¶9 Regarding the April 16, 2014 reply to the proposed admonishment of
another bargaining -unit member, the administrative judge correctly found that the
appellant’s activity was not p rotected, because there is no law, rule, or regulation
granting a right to reply to a proposed admonishment. ID at 16-17. Thus, in
making that reply, the appellant did not assist another employee in an appeal,
complaint, or grievance right granted by law , rule, or regulation. 5 U.S.C.
§ 2302 (b)(9)(B); see Graves , 123 M.S.P.R. 434, ¶¶ 3, 14 (finding that the
appellant’s testimony before an agency investigative board in support of a
coworker was not protected under 5 U.S.C. § 2302 (b)(9)(B) because the
investigation did not constitute the exercise of an appeal, complaint, or grievance
right). On review, the appellant argues that the administrative judge should have
7
considered that a proposed admonishment may be grieved under the applicable
collective ba rgaining agreement. PFR File, Tab 1 at 32. However, assuming the
appellant is correct that there was a law, rule, or regulation granting the employee
the right to grieve her proposed admonishment under the collective bargaining
agreement, the record does not show that the appellant in fact assisted her in
exercising that right.
¶10 As to the May 23, 2014 memorandum objecting to HRM’s response to the
union’s RFI, the administrative judge found that 5 U.S.C. § 2302 (b)(9)(B)
does not cover an RFI unless it was filed in direct support of a grievance or unfair
labor practice complaint. ID at 18-21. The appellant argues that in so finding,
the administrative judge read the statute too narrowly. PFR File , Tab 1 at 32. We
disagree. As noted previously, for activity to be protecte d under 5 U.S.C.
§ 2302 (b)(9)(B), an appellant must prove that he lawfully assisted another
employee in “any appeal, co mplaint, or grievance right granted by any law, rule,
or regulation,” meaning that he took an initial step toward taking legal action
against the agency for a perceived violation of employment rights. 5 U.S.C.
§ 2302 (b)(9)(B); Graves , 123 M.S.P.R. 434, ¶ 18. Not every o bjection , gripe, or
protest about a workplace matter constitutes the sort of complaint lodged in a
formal adjudicat ory process that is protected under 5 U.S.C. § 2302 (b)(9)(B). See
Owen v. Department of t he Air Force , 63 M.S.P.R. 621, 624, 627-28 (1994)
(finding that , although the appellant referred to his report to the Occupational
Safety & He alth Administration about his exposure to fumes as a “complaint,” it
was merely a n informal “complaint” as the term is used to denote gripes or
objections , rather than a complaint lodged in a formal adjudicative process, and
thus it was not covered by 5 U.S.C. § 2302 (b)(9)(B)) ; see also Von Kelsch v.
Department of Labor , 59 M.S.P.R. 503, 505 -06, 508 (1993) (concluding that
filing a claim for compensation under the Federal Employees’ Compensation Act
was not the “exercise of any appeal, complaint, or grievance right” within the
meaning of section 2302(b)(9)(B)), overr uled on ot her grounds by Thomas v.
8
Department of the Treasury , 77 M.S.P.R. 224, 236 n.9 (1998), overruled by
Ganski v. Department of the Interi or, 86 M.S.P.R. 32 (2000 ). The appellant’s
objection to HRM’s RFI response was part of the union’s effort to obtain
information re garding the PIPs of two bargaining -unit members, not a complaint
lodged in a formal adjudicatory process. Conversely , the administrative judge
correctly found protected the appellant’s grievance , which he filed on the same
date as the memorandum and which concern ed the same subject matter. See ID
at 17-18; IAF, Tab 40 at 32 -33, Tab 40 at 66-67. Thus, the administrative judge
properly determined that the appellant failed to establish that his May 23, 2014
memorandum separately constituted protected a ctivity under 5 U.S.C.
§ 2302 (b)(9)(B).
The administrative judge should conduct a new Carr factors analysis on remand.
¶11 We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have separated the appellant absent his
protected activity. In determining whether an agency has met its burden, the
Board will consider all relevant factors, including the following: (1) the strength
of the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence tha t the agency takes similar actions against
employees who do not engage in such protected activity, but who are otherwise
similarly situated. Alarid , 122 M.S.P.R. 600, ¶ 14; see Carr , 185 F.3d at 1323 .
The Board must consider all the pertinent evidence in the record, and must not
exclude or ignore countervailing evidence by only looking at the evidence that
supports the agency’s po sition. Alarid , 122 M.S.P.R. 600, ¶ 14; see Whitmore v.
Department of Labor , 680 F.3d 1353 , 1367 -70 (Fed. Cir. 2012).
¶12 This appeal presents an issue of first impression in that, as a reemployed
annuitant, the appellant served at the will of the agency, and was not entitl ed to
the procedural protections afforded under chapter 75 of title 5. See 5 U.S.C.
§ 3323 (b)(1); Garza v. Department of the Navy , 119 M.S.P.R. 91, ¶ 7 (2012).
9
The administrative judge found that, in light of the appellant’s at -will status, the
analysis of the first Carr factor should be modified as follows:
The critical inquiry for this Carr factor is the mindset of the agency
official who separated the employee at the time the employee was
separated. In this analysis, even if, upon subsequent investigation,
the reasons the official separated a reemployed annuitant turn out to
be unsupported, the agency may still prevail on this Carr factor if it
can demonstrate by clear and convincing evidence that, at the time
he or she took the action, the official’s belief in the reasons
warranting the employee’s separation were objec tively both
reasonable and supportable.
ID at 38-39. On review, the appellant contends that the administrative judge
erred in imposing the modified standard, and that the lack of due process
protections for reemployed annuitants does not affect the agen cy’s burden of
persuasion under the clear and convincing test. PFR File, Tab 1 at 30-31.
¶13 For the following reasons, we decline to adopt the administrative judge’s
analysis. First, it is not correct to state that an agency may “prevail” on the first
Carr factor, or that it must establish the strength of its reasons by any particular
quantum of evidence. The Board does not view the Carr factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole.4 Alarid , 122 M.S.P.R. 600, ¶ 14; Lu v.
4 For the same reason, the appellant is mistaken in his impression that the agency must
prove the elements of its charges by clear and convincing evidence. PFR F ile, Tab 1
at 11. In a chapter 75 adverse action appeal involving an affirmative defense of
whistleblowing reprisal, proof of the agency’s charges may lend support to a finding
that the agency proved by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s protected disc losures or protected activity.
See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013) (finding that
the administ rative judge should reweigh the evidence on remand in light of the full
Board’s finding that the agency proved both of its charges). This does not imply,
however, that proof of the alleged misconduct is either necessary or sufficient to satisfy
the agency ’s overall burden, although it is relevant evidence that must be considered.
Id. (reminding the administrative judge that on remand “all the relevant evidence as a
whole” should be considered).
10
Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015) . Furthermore,
we agree with the appellant that the agency’s burden of proof is not diminished
by his at -will status. While it is true the appellant could have been lawfully
separated with relative ease, it is not sufficient for the agency to establish that its
action was justifiable; rather, the agency must show b y clear and convincing
evidence that it would have taken the same action in the absence of his protected
activity. See 5 U.S.C. § 1221 (e)(2); Alarid , 122 M.S.P.R. 600, ¶ 14; cf.
Whitmore , 680 F.3d at 1374 (stating that “[t]he whistleblower statute is clear that
even where the char ges have been sustained and the agency’s chosen penalty is
deemed reasonable, the agency must still prove by clear and convincing evidence
that it would have imposed the exact same penalty in the absence of the protected
disclosures”). To that end, the ag ency has offered an explanation that relies on
specific allegations of misconduct , and the strength of the evidence supporting
those allegations does not turn on the procedural protections to which the
appellant was entitled . Cf. Chavez v. Department of V eterans Affairs ,
120 M.S.P.R. 285, ¶¶ 30-31 (2013) (assessing the strength of the misconduct
allegations underlying the appellant’s p robationary termination, notwithstanding
the limited procedural protections afforded to probationary employees). We
therefore find no basis for departing from the traditional analysis.5
5 In considering the first Carr factor, the Board assesses t he evidence as it stood at the
time of the action, and in light of what the agency officials knew at the time they acted.
Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1372 (Fed. Cir. 2001). We
agree with the appellant, however, that to focus exclusively on the actual beliefs held
by the agency of ficials would be inconsistent with our obligation to consider all
pertinent evidence. PFR File, Tab 1 at 31; see Whitmore , 680 F.3d at 1368 . For
example, if an agency official fails to investigate a charge sufficiently before bringing
an action, such a f ailure might indicate an improper motive. Social Security
Admin istration v. Carr , 78 M.S.P.R. 313, 335 (1998), aff’d , 185 F.3d 1318 (Fed. Cir.
1999). If, on the other hand, relevant facts are developed on appeal to the Board that
the agency had no prior reason to know, we would find that such facts do not undercut
the agency’s otherwise sufficiently clear and convincing evide nce that, at the time of
11
¶14 Turning to the second Carr factor, we agree with the administrative judge
that the appellant’s protected activities, taken in isolation, would not have created
a strong motive to retaliate on the part of either the deciding official, who issued
the decision to separate the appellant, or the HRM official who assisted the
deciding officia l in taking that action. ID at 48-49. However, the Federal
Circuit , the only circuit to have addressed this issue, has cautioned us against
taking too narrow a view of the second Carr factor.6 In Whitmore , 680 F.3d
at 1370 , the court stat ed “[t]hose responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the d isclosures, and even if they do not know the whistleblower personally, as
the criticism reflects on them in the ir capacities as managers and employees.”
The court in Whitmore determined that, when a whistleblower makes highly
critical accusations of an agency’s conduct that draws the attention of high -level
agency manager s, the fact that an agency official is “outside the whistleblower’s
chain of command, not directly involved in alleged retaliatory actions, and not
personally named in the whistleblower’s disclosure is insufficient to remove the
possibility of a retaliatory motive or retaliatory influence,” and that the Board
should consider any motive to retaliate on the part of the agency official who
ordered the action , as well as that of any officials who influenced the action. Id.
at 1371. In Miller v. Department of Justice , 842 F.3d 1252 , 1261 -62 (Fed. Cir.
2016), t he court also instructed the Board not to limit its consideration of a
the action, its decision would have been the same in the absence of the protected
activity. Id.
6 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. Howev er, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (P ub. L. No. 112-199, 126 Stat
1465 ), extended for 3 years ( All Circuits Review Extension Act, Pub. L. No. 113-170,
128 Stat. 1894 ), and eventually made permanent (All Circuits Review Act, Pub. L.
No. 115-195, 132 Stat. 1510 ), we must consider this issue with the view that the
appellant may seek review of this decision before any appropriate court of appeal. See
5 U.S.C. § 7703 (b)(1)(B).
12
motive to retaliate to the appell ant’s supervisors , but to examine whether a
retaliatory motive could be imputed more broadly. Similarly, in Robinson v.
Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019), the court
found that, although the deciding official did not have a personal motive to
retaliate against the appellant for contradicting an agency Under Secretary , the
Board ’s administrative judge erred by fai ling to consider whether he had a
“professional retaliatory motive ” against the appellant because his disclosures
“implicated the capabilities, performance, and veracity of [agency] managers and
employees, and implied that the [agency ] deceived [a] Senate Committee.”
¶15 In sum, the Federal Circuit’s decisions instruct that , in assessing Carr factor
two, the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision , the Board and its administrative
judges should avoid an overly restrictive analysis and should fully consider
whether a motive to retaliate can be imputed to the ag ency officials involved and
whether th ose officials possessed a “professional retaliatory motive,” because the
whistleblower’s disclosures implicated agency officials and employee s in general .
In conducting this analysis, all of the record evidence relevant to whether there
was a motive to retaliate and the extent of that motive must be consid ered.7 See
Whitmore , 680 F.3d at 1368 (“[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 conclusio n”).
¶16 In the instant case, we find that the administrative judge took to o narrow an
approach in his analysis of Carr factor two and failed to address all of the
relevant record evidence. In particular, t he appellant’s protected activities take
7 In Robinson , for example, the court noted that the administrative judge failed to
discuss whether the deciding official had a “professional motive to retaliate, ” but
ultimately decided that Carr factor two slightly favor ed the agency based on its
conclusion that the administrative judge’s crediting of the deciding official’s testimony
that he lacked a motive to retaliate was “not unreasonable.” 923 F.3d at 1019 -20.
13
on greater significance against the background of the tense relationship between
the union and agency management in the Orlando off ice, which several witnesses
described as “dysfunctional.” He aring Transcript (HT) (Jan. 13, 2016) at 42
(testimony of the deciding o fficial); HT (Jan. 14, 2016) at 261 (testimony of the
third level supervisor), 409 (testimony of the union president). In addition, in a
March 20, 2014 email from the deciding official to the appellant concerning the
proposed location of two third -step gri evance meetings, the deciding official
state d: “AFGE’s unwillingness to cooperate on this issue is duly noted. I had
hoped this didn’t have to be such an adversarial relationship.” IAF, Tab 51 at 14.
Furthermore, the appellant’s third -level supervisor had complained to the
deciding official that the union was burdening the Orlando office by filing a large
volume of complaints and RFIs that took up most of management’s time. HT
(Jan. 14, 2016) at 262, 264 -66 (testimony of the third level supervisor). T he
administrative judge found that this evidence was not relevant because the
decidin g official and Chief of HRM did not view the activity as coming from the
appellant in particular. ID at 46. However, it stands to reason that management’s
frustration wi th the volume of union activity could extend, to at least some
degree, to the appellant’s protected activities, which, though only a small portion
of the whole, could nonetheless have been perceived as adding to the overall
burden. This evidence of labor -management tension in the workplace may or
may not support a conclu sion that the second Carr factor weighs against the
agency . However, b y rejecting as irrelevant evidence of labor -management
tension in the appellant’s working environment, the administrat ive judge failed to
consider all of the evi dence potentially pertaining to motive.
¶17 Regarding the third Carr factor, we find that, contrary to the initial
decision, the record does not definitively establish that the agency has taken
separation actions ag ainst reemployed annuitants who engaged in misconduct and
did not engage in protected activity under 5 U.S.C. § 2302 (b)(9)(B). ID at 51. At
the hearing, the HRM Chief testified that she had been involved in the separation
14
of 5 to 10 other reemployed annuitants, but she did not identify what positions
those employees occupied or what conduct issues they may h ave had. HT
(Jan. 29, 2016) at 84 (testimony of the HRM Chief). She further testified tha t, to
her knowledge, none of them was “vice president to the union.” Id. However,
protected activity under 5 U.S.C. § 2302 (b)(9)(B) is not solely the province of
union vice presidents. Thus, whi le we agree with the administrative judge that
the record contains no evidence that the agency does not separate reemployed
annuitants w ho committed misconduct and did not engage in protected activity
under 5 U.S.C. § 2302 (b)(9)(B),8 ID at 51, the record is incomplete regarding
whether the agency does, in fact, take action against individuals w ho committed
misconduct and did not engage in protected acti vity under 5 U.S.C.
§ 2302 (b)(9)(B).
¶18 As the appellant correctly observes, it is the agency that bears the burden of
proving that it would have taken the same action in the absence of his protecte d
activity. PFR File, Tab 1 at 28; see Alarid , 122 M.S.P.R. 600, ¶ 14. While the
agency does not have an affirmative burden to produce evidence concerning each
and every Carr factor, the Federal Circuit has held that “the absence of any
evidence r elating to Carr factor three 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
8 The appellant identified another reemployed annuit ant, also a GS -12 RSVR, who
did not engage in whistleblowing or union activity, and who was placed on “second
signature” as a result of performance problems relating to his failure to follow policy
and procedu res in rating claims. HT (Jan. 29, 2016) at 248‑50 (testimony of the
appellant). However, while the third Carr factor requires that the Board take into
account different kinds and degrees of conduct between otherwise similarly situated
employees, Whitmore 680 F.3d at 1373 -74, we find that a meaningfu l comparison
cannot be drawn between the other reemployed annuitant’s perform ance issues and the
appellant’s conduct.
15
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, the agency has
introduced some comparator evidence, but its evidence is insufficient to show that
the proffered comparators are in fact appropriate comparators. Under the
circumstances, we find that the agency has failed to introduce complete, fully
explained comparator evidence, the Fede ral Circuit’s admonitions in Smith and
Siler apply, and Carr factor 3 does not weigh in the agency’s favor.9
¶19 In light of our findings above, we conclude that it is necessary to conduct a
new analysis of the Carr factors. We further find that the administrative judge is
in the best position to do so, having heard the live testimony. See Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013). Accordingly, we
remand the appeal for a new finding as to whether the agency proved by clear and
convincing evidence that it would have separated the appellant in the absence of
his protect ed activity. The administrative judge may adopt his previous factual
findings an d credibility determinations as appropriate.10
9 We recognize that there are different r easons why a record in a whistleblowing case
might not contain relevant comparator evidence. Here, as in Smith and Siler , the reason
is that the agency failed to make a sufficient proffer of such evidence. In another case,
the agency may present persuasive evidence that no appropriate comparators exist .
Until we are presented with that fact pattern, h owever, we need not decide that case.
10 On remand, the administrative judge should address documentary evidence indicating
that the agency issued a directive that Automated Standardized Performa nce Elements
Nationwide records were not to be used in determining employee performance during
the period from May throug h August 2014. IAF, Tab 34 at 16, ¶ 9. The administrative
judge also may consider whether and to what extent the medical evidence concer ning
the union president might lead him to revise his assessment of her credibility.
16
ORDER
¶20 We remand the appeal to the Atlanta Regional Office for further
adjudication c onsistent with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | SOTO_JAVIER_AT_1221_15_0157_W_1_OPINION_AND_ORDER_1917859.pdf | 2022-04-20 | Javier Soto v. Department of Veterans Affairs, 2022 MSPB 6 | AT-1221-15-0157-W-1 | P |
41 | https://www.mspb.gov/decisions/precedential/ODOH_FIDELIS_O_CH_0731_16_0344_I_1_OPINION_AND_ORDER_1917389.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 5
Docket No. CH-0731 -16-0344 -I-1
Fidelis O. Odoh,
Appellant,
v.
Office of Personnel Management,
Agency.
April 1 9, 2022
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Joyce B. Harris -Tounkara , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the suitability determination of the Offic e of Personnel Management
(OPM) , but remanded it to OPM to decide whether the resulting suitability action
was appropriate based on the sustained charge . For the reasons discussed below,
we DENY the appellant ’s petition for review, and AFFIRM the initial decision .
BACKGROUND
¶2 In February 2015, t he appellant ’s private employer terminated him for
sleeping on duty. Initial Appeal Fi le (IAF), Tab 8 , 54-61. In May 2015, the
Department of the Army appointed him to a Recreation Specialist position. Id.
2
at 105. Two months prior to his appointment , in March 2015, he completed and
electronically signed an Optional Form (OF) 306, Declaration for Federal
Employment. Id. at 209-10. Among other things, he answered “no” to the
question of whether during the last 5 years he had “been fired from any job for
any reason .” Id. at 209. Upon reporting for his new position, in May 2015, he
signed a hardcopy OF-306 containing the same response . Id. at 211-13.
¶3 In March 2016, a fter investigating his background and suitability, OPM
instructed the Department of the Army to separate the appellant from service,
cancelled his eligibility for reinstatement, cancelled his eligibility for
appointment, and debarred him for a period of 3 years. Id. at 16. OPM’s
negative suitability determination was based upon two charges : (1) misconduct
or negligence in employment ; and (2) material, intentional false statement, or
deception or fraud in examination or appointment. Id. at 19 -21. The Department
of the Army separated the appellant effective March 26, 2016. Id. at 11.
¶4 The appell ant filed the instant appeal challenging OPM’s negative
suitability determination. IAF, Tab 1 at 2. After holding the requested hearing,
the administrative judge remanded the matter to OPM. IAF, Tab 15,
Initial Decision (ID) at 1 , 9. She found that OPM only proved its second
charge —material, intentional false statement, or deception or fraud in
examination or appointment. ID at 5 -8. Therefore, pursuant to 5 C.F.R.
§ 731.501 (b)(2), she ordered OPM to determine whether the suitability action
taken was appropriate based on that remaining charge. ID at 8 -9.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response , and the appellant has replied. PFR
File, Tabs 5 -6.
ANALYSIS
¶6 To prevail in a negative suitability determination appeal, OPM must
demonstrate by preponderant evidence that the appellant’s conduct or character
3
may have an impact on the integrity or effici ency of the service, based on one of
the specific factors listed in 5 C.F.R. § 731.202 (b). Hawes v. Office of Personnel
Management , 122 M.S.P.R. 341 , ¶ 5 (2015); see 5 C.F.R. §§ 731.101 (a),
731.202(a), 731.501(b). One of those factors mirrors the c harge at issue in this
appeal —material, intentional false statement, or deception or fraud in
examination or appointment. 5 C.F.R. § 731.202 (b)(3).
¶7 The Board has jurisdiction to review all aspects of a suitability
determination, including whether the charged conduct renders an individual
unsuitable for the position in question. Hawes , 122 M.S.P.R. 341 , ¶ 5. If the
Board determines that one or more of the charges brought by OPM is supported
by a preponderance of the evidence, regardless of whether all specifications are
sustained, it must affirm the suitability det ermination. Id.; 5 C.F.R.
§ 731.501 (b)(1). If the Board sustains fewer than all the charges, the Board must
remand the case to OPM to determine whether the resulting suitability action
taken is appropriate based on the sustained charge. Hawes , 122 M.S.P.R. 341 ,
¶ 5; 5 C.F.R. § 731.501 (b)(2).
¶8 The single charge that the administrative judge sustained was based upon an
allegation that the appellant provided false information when he twice answered
“no” in response to the question of whether he had been fired during the past
5 years, even though he had been fired from his most recent job just weeks
earlier.1 IAF, Tab 8 at 19-22, 50-61, 209 -13. When confronted during OPM’s
investigation, the appellant at tributed his response s to a misunderstanding of the
question. Id. at 32. According to the appellant, he interpreted the question as
asking whether he had been fired from Federal employment. Id.
¶9 OPM was required to prove, by preponderant evidence, that the appellant:
(1) supplied wrong information; and (2) knowingly did so with the intention of
1 On review, neither party challenges the administrative judge’s finding that the agency
failed to prove its other charge. ID at 5 -6. We decline to disturb that finding.
4
defrauding, deceiving, or misleading the agency . Boo v. Department of
Homeland Security , 122 M.S.P.R. 100, ¶ 10 (2014); see Hawes , 122 M.S.P.R.
341, ¶ 21 (analyzing a charge of “material, intentional false statement, or
deception or fraud in examination or appointment” under the same standards as a
falsification charge). The appellant does not dispute the administrative judge’s
finding that he supplied wr ong information , and we see no reason to disturb that
finding. ID at 7 -8. The appellant does, however, dispute the administrative
judge’s finding of intent. PFR File, Tab 1 at 6 -8.
¶10 To prove the intent element of a falsification charge, an agency must
establish that the employee intended to deceive the agency for his own private
material gain . Leatherbury v. Department of the Army , 524 F.3d 1 293, 1300 (F ed.
Cir. 2008) ; Boo, 122 M.S.P.R. 100 , ¶¶ 11-12 & n.3 . Such intent may be
established by circumstantial evidence or inferred when the misrepresentation is
made with reckless disregard for the truth or with conscious purpose to avoid
learning the truth. Boo, 122 M.S.P.R. 100, ¶ 10. In determining whether an
agency has pro ven intent, the Board must consi der the totali ty of the
circumstances, including the appellant ’s plausible explanation, if any. Id.
Securing employment , as here, is private material gain that will support the
charge. Hawes , 122 M.S.P.R. 341, ¶ 21.
¶11 In relevant part, the OF -306 asks:
During the last 5 years, have you been fired from any job for any
reason, did you quit your job 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 [OPM]
or any other Federal agency?
IAF, Tab 8 at 20 9. Below, the appellant argued that he answered the question on
the OF-306 properly, based upon his understanding of the question . Specifically,
he suggested that he understood the question to be asking about only Federal jobs.
IAF, Tab 11 at 9 -10; see Leatherbury , 524 F.3d at 1301 (observing that a
reasonable good faith belief that a statement is true “precludes a finding that an
5
employee acted with deceptive intent”); Boo, 122 M.S.P.R. 100 , ¶ 10 (observing
that a plausible explanation must be considered in deciding intent). The
administrative judge found that it was more likely that he sought to conceal his
prior termination in order to secure employment . ID at 7 -8.
¶12 On review, the appellant reasserts that the charge should not be sustained
because he simply misunderstood the question. PFR File, Tab 1 at 6 -8. However,
we find that his disagreement with the administrative judge’s well -reasoned
credibility -based findings provides no basis for disturbing the initial decision.
See Cro sby 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 ); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same). As the administrative judge noted, the
question includes ordinary language and is plain on its face. ID at 7 -8. It asked
if he had been fired from “any job for any reason.” IAF, Tab 8 at 209 . We agree
that the appellant’s purported inte rpreta tion of the OF -306 question was
unreasonable and implausible.
¶13 We also find no merit to the appellant’s suggestion that, if the question was
asking about all jobs, the inclusion of the word “Federal” was superfluous. PFR
File, Tab 6 at 6-7. The ques tion clearly asked if the appellant had “been fired
from any job . . . or . . . debarred from Federal employment.” IAF, Tab 8 at 209,
212 (emphasis added). Accordingly, the appellant has failed to provide a reason
for disturbing the administrative judge’ s finding of intent.
¶14 The appellant next suggests that the administrative judge should have
treated his appeal as a chapter 75 action and mitigated his removal to a lesser
penalty. PFR File, Tab 1 at 6 -9. This argument also fails.
¶15 Our reviewing court analyzed the interplay between the statutory appeal
rights of tenured Federal employees for adverse actions and OPM’s suitability
regulations in Archuleta v. Hopper , 786 F.3d 1340 (Fed. Cir. 2015). The court
6
concluded that an “employee,” as defined in 5 U.S.C. § 7511 (a)(1), had the right
to appeal an adverse action under 5 U.S.C. § 7513 (d) even if that adverse action
stemmed from a negative suitability determination by OPM. Archuleta , 786 F.3d
at 1347 -51; see Aguzie v. Office of Personnel Management , 116 M.S.P.R. 64 ,
¶¶ 25-31 (2011) (reaching the same result). In such cases, the court found that
the Board must conduct an independent review of OPM’s penalty in light of the
relevant Douglas factors. Archuleta , 786 F.3d at 1352 -53; see Aguzie ,
116 M.S.P.R. 64 , ¶¶ 33-34; see also Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 305 -06 (1981) (listing factors relevant to a determination of the
approp riateness of a penalty). In reaching these conclusions, the court reasoned
that Cong ress could have, but had not, e xclude d suitability -based removals from
the coverage of chapter 75. Archuleta , 786 F.3d at 1348 , 1351 . However,
Congress has since amended the relevant statute to do just that.
¶16 Pursuant to the National Defense Authorization Act for Fiscal Year 2016
(NDAA for Fiscal Year 2016) , Pub. L. No. 114 -92, section 1086( f)(9), 129 Stat.
726, 1010 (2015), an appealable adverse action does not include “a suitability
action taken by [OPM] under regulations prescribed by [OPM] , subject to the
rules prescribed by the President under this title for the administration of the
competitive service.”2 5 U.S. C. § 7512 (F). Accordingly, when OPM makes a
suitability determination pursuant to its regulations, as it did here, the Board does
not have the authority to adjudicate the matter as a chapter 75 adverse action,
2 The Act refers to actions taken by the “Office,” without identifying the office in
question . We have reviewed the legislative history, but have similarly been unable to
find any definition. See Legislative Intent and Joint Explanatory Statement to
Accompany S. 1356, Pub. L. No. 114-92, 114 th Cong., 1 st Sess., 750 (Comm. Print
2015). H owever, “Office” is used elsewhere in chapter 75 to refer to OPM. 5 U.S.C.
§§ 7511 (b)(2)(B), (c) . Therefore, we assume that it has the same meaning here. See
Norman J. Singer, 2A Statutes & Statutory Construction § 47:16 , at 265, 272 (6th ed.
2000) (explaining that an unclear word can be assumed to have the same meaning as
clearly provided for elsewhere in a statute ).
7
even if the appellant is a tenured Federal employee.3 Instead, the Board’s
jurisdiction over a negative suitability determination is limited to that provided
under 5 C.F.R. § 731.501 , which does not extend to reviewing or modify ing the
ultimate action taken as a result of a suitability determination. See Folio v.
Department of Homeland Security , 402 F.3d 1350 , 1353, 1355-56 (Fed. Cir.
2005). Because the administrative judge sustained only one of the two charges,
she properly remanded the matter for OPM to decide whether the actions taken
are still appropriate.4 See id. at 1355 (observing that, under 5 C.F.R. § 731.501 ,
the Board must remand the suitability action to OPM if it sustains one or more,
but not all, of the charges ).
ORDER
¶17 We REMAND this appeal to OPM pursuant to 5 C.F.R. § 731.501 (b)(2) to
determine whether the suitability actions taken are appropriate based on the
sustained charge.
3 Even if 5 U.S.C . § 7512 (F) did not explicitly preclude us from addressing OPM’s
negative suitability determination under chapter 75, the record demonstrates that the
appellant was serving an initial 1-year probationary period in the competitive service .
IAF, Tab 8 at 11, 105. Thus, h e was not an “employee” with chapter 75 Board appeal
rights. See 5 U.S.C. § 7511 (a)(1) (A). Therefore , we do not address any question
concerning the retroactivity of 5 U.S.C. § 7512 (F) to the circumstances at hand , in
which the misconduct occurred prior to the November 25, 2015 enactment of the NDAA
for Fiscal Year 2016, but OPM took its suitability action afte r its enactment . See Pub.
L. No. 114 -92, 129 Stat. 726 (reflecting the date of enactment). Given the appellant’s
status as a probationary appointee without chapter 75 appeal rights, any concerns about
potential retroactivity cannot change the outcome here .
4 In his reply brief, the appellant mistakenly asserts that OPM missed the deadline for
complying with the administrative judge’s instructions to decide whether the suitability
actions taken are still appropriate. PFR File, Tab 6 at 5. In fact, the admini strative
judge instructed OPM to act within 30 days of the initial decision becoming final. ID
at 9-10. Because the appellant filed a timely petition for review, the initial decision is
not yet final . Id.; 5 C.F.R. § 1201.113 (a).
8
¶18 This is the final decision of the Merit Systems Protection Board i n this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
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 b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
10
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informat ion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any s uch request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your repres entative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
11
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny 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 wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
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 2 7, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fed eral Circuit or any other circuit court 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
for Merit Systems Protection Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | ODOH_FIDELIS_O_CH_0731_16_0344_I_1_OPINION_AND_ORDER_1917389.pdf | Date not found | null | CH-0731-16-0344-I-1 | P |
42 | https://www.mspb.gov/decisions/precedential/SMITH_GARILYNN_PH_1221_16_0010_W_1_OPINION_AND_ORDER_1915929.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 4
Docket No. PH-1221 -16-0010- W-1
Garilynn Smith,
Appellant,
v.
Department of the Army,
Agency.
April 13 , 2022
Graig P. Corveleyn , Esquire, Hopewell, New Jersey, for the appellant.
Jason Guiliano , Picatinny Arsenal, New Jersey, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
action (IRA) appeal. For the reasons set forth below, we DENY the petition and
AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still
granting corrective action . We modify the initial decision by applying the clear
and convincing evidence standard for nondisciplinary IRA cases set forth in
Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶¶ 11-12 (2006), and by
directly addressing the second and third factors set forth in Carr v. Social
Security Administration, 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
2
BACKGROUND
¶2 On July 17, 2006, the appellant’s husband, a U.S. Army sergeant and
explosive ordnance disposal technician, was killed in action in Iraq. Initial
Appeal File (IAF), Tab 20 at 38; Hearing Transcript, Volume 1 (HT1) at 7, 18
(testimony of the appellant). Following her husband’s death, the appellant
attempted to obtain information about the disposition of his remains, which had
been flown to Dover Air Force Base, where they were handled by Air Force
Mortuary Affairs Operations (Dover MAO) personnel . HT1 at 29- 39, 121
(testimony of the appellant). On April 21, 2011,1 Dover MAO’ s Deputy
Commander sent the appellant a letter stating that her husband’s remains had been
cremated, further incinerated by a medical disposal company, and sent to a
Virginia landfill. IAF, Tab 20 at 39.
¶3 Shortly after receiving this information, the appellant notified the media
and a policy advisor for U.S. Congressman Rush Holt about the mis handling of
service members’ remains by Dover MAO. Id. at 40 ; HT1 at 42, 48 (testimony of
the appellant). On December 7, 2011, The Washington Post published an article
about the matter that identified the appellant by name. IAF, Tab 8 at 22- 26. The
following week, Representative Holt delivered a speech in the U. S. House of
Representatives in which he explained that he would not vote for the National
Defense Authorization Act of 2012 (NDAA) because , inter alia, it did not
mention the desecration of the remains of deceased service members at Dover MAO . IAF, Tab 21 at 59-60. In his speech, Representative Holt stated that the
appellant had brought the matter to his attention. Id. at 60.
¶4 During this time, the appellant was working at the agency’s Picatinny
Arsenal (Picatinny) in New Jersey. IAF, Tab 4 at 19- 20. The appellant served as
1 Due to an apparent typographical error, the letter is dated April 21, 2008, rather than
April 21, 2011. HT1 at 40- 41 (testimony of the appellant).
3
a GS-08 Management Support Assistant with the Office of the Project Manager,
Maneuver Ammunition Systems (PM MAS), at Picatinny from October 2010,
until March 2012, when she transferred to the Naval Sea Systems Command. Id. ;
HT1 at 23 (testimony of the appellant). The appellant was unhappy with her new
position , however, and sought to return to PM MAS. IAF, Tab 20 at 77- 79; HT1
at 76 (testimony of the appellant). On July 24 and August 14, 2012, respectively,
a PM MAS Management Services Specialist notified the appellant that a GS -09
Executive Assistant (EA) at PM MAS had taken another job and that a vacancy
announcement for the position was forthcoming. IAF, Tab 20 at 70, 74 ; HT1
at 80 (testimony of the appellant). The agency issued the vacancy announcement
on September 4, 201 2. IAF, Tab 4 at 40- 46.
¶5 The appellant applied for the position and was one of 14 candidates on the
certificate of eligibles. IAF, Tab 6 at 33-37. Shortly after the vacancy
announcement closed, two additional news reports were published about the
landfill issue: (1) a September 23, 2012 article in The W ashington Post , which
identified the appellant by name, included a photograph of her at the landfill, and
stated that she was instrumental in uncovering the scandal; and (2) a
September 29, 2012 article in The A rmy Times , which also identified the appellant
by name. IAF, Tab 23 at 5- 14. In early October, the selecting official canceled
the vacancy announcement. IAF, Tab 17 at 13.
¶6 On October 19, 2012, the agency posted a second vacancy announcement
for the EA position, which included three additional duties. IAF, Tab 4 at 30- 36,
38. The appellant applied for the position and was again placed on the certificate
of eligibles; however, the selecting official chose another candidate for the
position. IAF, Tab 6 at 28- 32, Tab 21 at 158- 59.
¶7 On January 11, 2013, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that she was not selected for the EA position in
reprisal for her disclosures concerning the improper disposal of human remains
4
by Dover MAO. IAF, Tab 1 at 13- 21. On August 4, 2015, OSC terminated its
inquiry into her allegations and issued her a close- out letter and notice of Board
appeal rights. Id. at 9- 12.
¶8 The appellant timely filed this IRA appeal and requested a hearing. IAF,
Tab 1. The administrative judge determined that the Board had jurisdiction over
the appeal. IAF, Tab 11. Following a hearing, the administrative judge issued an initial decision granting the appellant’s request for corrective action. IAF,
Tab 47, Initial Decision (ID) at 1, 25. He found that the appellant proved by
preponderant evidence that she made protected disclosures regarding Dover MAO’s improper handling of her husband’s remains, and that these disclosures
were contributing factors in the agency’s decision not to select her for the EA
position. ID at 17- 22. The administrative judge also concluded that the agency
failed to prove by clear and convincing evidence that it would not have selected
the appellant for that position in the absence of her protected disclosures. ID at 22-24.
¶9 The agency has filed a petition for review,
2 alleging that the administrative
judge failed to properly admit evidence at the hearing, relied on “ inadmissible”
hearsay evidence in the initial decision, and improperly allowed the appellant to
testify as an expert witness on mortuary affairs, yet denied the agency the opportunity to present a rebuttal expert witness. Petition for Review (PFR) File, Tab 3 at 5- 16. The agency further alleges that the appellant failed to prove the
contributing factor element of her whistleblower claim and that, in any event, it proved by clear and convincing evidence that it would not have selected the
2 With its petition for review, the agency submits the hearing transcript in this appeal.
Petition for Review (PFR) File, Tab 3 at 21- 550. Because the transcript is already part of
the record, IAF, Hearing Transcript, Volumes 1- 2, it does not constitute ne w evidence. See
Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980).
5
appellant for the EA position absent her disclosures. Id. at 16 -20. The appellant
has filed a response to the petition for review.3 PFR File, Tab 6.
ANALYSIS4
The Board declines to dismiss the agency’s petition for review for failure to
comply with the administrative judge’s interim relief order.
¶10 When, as here, the appellant was the prevailing party in the initial decision
and the decision granted the appellant interim relief, any petition for review filed
by the agency must be accompanied by a certification that the agency has
complied with the interim relief order. 5 C.F.R. § 1201.116 (a). The agency ’s
failure to provide the required certification may result in the dismissal of the
agency’s petition for review. 5 C.F.R. § 1201.116 (e).
¶11 In her response to the agency’s petition for review, the appellant moves to
dismiss the petition on the grounds that the agency has failed to provide interim
3 On July 6, 2017, the day before the agency filed its petition for review, the appellant
filed a “Motion for Enforcement of Interim Relief ” with the Board’s Northeastern
Regional Office, alleging that the agency has failed to comply with the administrative
judge’s interim relief order. Smith v. Department of the Army , M SPB Docket
No. PH-1221 -16-0010 -C-1, Compliance File (CF), Tab 1 . The regional office docketed
the motion as a petition for enforcement. Id. On August 17, 2017, the administrative
judge issued an initial decision in the compliance matter stating that the appellant
should have filed her petition for enforcement with the Clerk of the Board instead of the
regional office because the agency had a petition for review of the initial decision
pending before the Board. CF, Tab 5, Compliance Initial Decision (CID ) at 3 (citing
5 C.F.R. § 1201.116 ). T he administrative judge thus dismissed the petition for
enforcement and forwarded it to the Clerk of the Board for joinder with the agency’s
petition for review. CID at 3. The initial decision became final on September 21, 2017,
when neither party filed a petition for review. Id. at 4. We DENY the petition for
enforcement because our regulations do not allow for a petition for enforcement o f an
interim relief order. See Ayers v. Department of the Army, 123 M.S.P.R. 11 , ¶ 7 (2015);
5 C.F.R. § 1201.182 (a)-(b).
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
relief as ordered by the administrative judge, and has failed to certify its
compliance with the interim relief order. PFR File, Tab 6 at 5- 6; see 5 C.F.R.
§ 1201.116 (d). We agree with the appellant that the agency has failed to show
that it has complied with the administrative judge’s interim relief order. The agency’s petition for review did not include a certification that the agency had complied with the interim relief order,
5 and the agency has not presented any
evidence of compliance. Moreover, although it had the opportunity to do so, the
agency did not reply to the appellant’s response to the petition for review. Thus,
it has not challenged the appellant’s allegations that it failed to provide interim
relief.6
¶12 Although the Board may dismiss an agency’s petition for review if the
agency fails to establish its compliance with the interim relief order, it need not
do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101,
¶ 11 (2013). We exercise our discretion in this case not to dismiss the petition for
review because the issue of the agenc y’s compliance with the interim relief order
is now moot by virtue of our final decision ordering corrective action. See Elder
v. Department of the Air Force, 124 M.S.P.R. 12 , ¶ 20 (2016).
5 As the appellant notes on review, t he agency does not mention interim relief in its
petition for review. PFR File, Tab 6 at 6; see generally PFR File, Tab 1.
6 Although the agency has not addressed the compliance issue, the record in the
compliance matter indicates that the appellant returned to work with the agency as a
GS-09 EA on August 7, 2017. CF, Tab 4. This does not demonstrate full compliance
with the interim relief order, however, as the order directed the agency to appoint the appellant to the GS -09 EA position effective as of the date of the initial decision, i.e.,
May 19, 2017. ID at 1, 26.
7
The appellant made protected disclosures.
¶13 Under the Whistleblower Protection Enhancement Act, at the merits stage
of the appeal, the appellant must prove by preponderant evidence7 that she made a
protected disclosure under 5 U.S.C. § 2302 (b)(8), or engaged in activity protected
by 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) , and that such disclosure or
activity was a contributing factor in a personnel action taken against her.
5 U.S.C. § 1221 (e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R.
335, ¶ 7 (2015 ). If the appellant meets that burden, the agency is given an
opportunity to prove by clear and conv incing evidence8 that it would have taken
the same personnel action absent the protected disclosure or activity . 5 U.S.C.
§ 1221 (e)(1)- (2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶14 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. 5 U.S.C. § 2302 (b)(8)(A); Parkinson v. Department of
Justice, 874 F.3d 710 , 713 (Fed. Cir. 2017 ). A reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude that the actions of the Government evidence one of the categories of wrongdoing listed in
section 2302(b)(8)(A). Lachance v. White ,
174 F.3d 1378 , 1381 (Fed. Cir. 1999).
The appellant need not prove that the matter disclosed actually established one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant
7 Preponderant evidence is “ [t]he degree of relevant evide nce that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4 (q).
8 Clear and convincing evidence is “ that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established. ”
5 C.F.R. § 120 9.4(e).
8
must show that the matter disclosed was one which a reasonable person in her
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302 (b)(8). Chavez v. Department of Vetera ns Affairs, 120 M.S.P.R. 285, ¶ 18
(201 3).
¶15 Following the hearing in this appeal, the administrative judge issued a close
of record order directing the appellant to submit a brief addressing why she
believed that her disclosure reported a type of wrongdoing listed i n 5 U.S.C.
§ 2302 (b)(8). IAF, Tab 37. In response, the appellant asserted that Dover
MAO’s practice of sending service members’ remains to a landfill violated
Department of Defense (DOD) Directive 1300.22, Mortuary Affairs Policy,
paragraph 4.2, which provides that the remains of all military members “will be
handled with the reverence, care, and dignity befitting them and the
circumstances.” IAF, Tab 39 at 20.
¶16 The administrative judge provided the agency the opportunity to respond to
the appellant’s brief, and it did so. IAF, Tabs 37, 45. In its post -hearing brief,
the agency argued that the appellant did not make a protected disclosure because the DOD directive cited by the appellant does not clearly state that what occurred
with the ashes in this case violated that directive or any law, policy, or regulation.
IAF, Tab 45 at 5- 6.
¶17 The administrative judge agreed with the appellant , and found that
“dumping the ashes of [service members ] into a landfill” fails to accord those
remains the “rev erence, care and dignity” required by the DOD directive . ID
at 19-20. Therefore, the administrative judge found that the appellant made a
protected disclosure by reporting conduct that violated this directive. ID
at 18-20.
¶18 In the alternative, the administrative judge found that, even if Dover MAO
did not violate the DOD directive, the appellant’s disclosures were nonetheless
protected because she established that she reasonably believed that Dover M AO
9
had committed some violation of law, rule, or regulation when it dumped portions
of her husband’s remains in a Virginia lan dfill. ID at 20-21. The administrative
judge noted that all of the agency’s managerial witnesses, including a U.S. Army
Major General, testified that they were appalled to learn how the appellant’s husband’s remains had been handled, and Representative Holt also believed that
Dover MAO had treated service members’ remains in a most undignified manner.
ID at 19-21. Based on this evidence and hearing testimony, the administrative
judge found that a disinterested observer could reasonably conclude that the
actions the appellant disclosed evidenced a violation of a law, rule, or regulation.
ID at 21. Therefore, the administrative judge found, and we agree, that the
appellant’s disclosures are protected. Id.
The appellant proved contributing factor under the knowledge/timing test.
¶19 To prevail in an IRA appeal, an appellant also must prove by preponderant
evidence that her protected disclosures were a contributing factor in a personnel
action. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016) . The
term “contributing factor” means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action regarding the individual who made the disclosure. Id.;
5 C.F.R. § 1209.4 (d). The most common way of
proving the contributing factor element is the “knowl edge/timing test.” Scoggins,
123 M.S.P.R. 592, ¶ 21. Under that test, an appellant may prove the contributing
factor element through evidence that the official taking the personnel action knew of the disclosure and took the personnel action within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id. Once an appellant has satisfied the knowledge/timing
test, she has demonstrated that a protected disclosure was a contributing factor in
a personnel action. Id.
¶20 Regarding the knowledge prong of the test, the administrative judge found
that the evidence presented at the hearing shows that Picatinny management
10
officials were aware of the appellant’s disclosures since at least the spring of
2011 . ID at 21. As for the timing prong of the tes t, the administrative judge
found that the appellant’s disclosures, and the news reports about those
disclosures, continued until September 2012, i.e., approximately 1 month before
the selecting official decided not to select the appellant for the EA posit ion.9 Id.;
see Scoggins , 123 M.S.P.R. 592 , ¶ 25 (finding that a personnel action that occurs
within 2 years of the appellant’s disclosure satisfies the timing component of the
knowledge/timing test). Therefore, the administrative judge found, the appellant
clearly satisfied the knowledge/timing test. ID at 22.
¶21 The agency challenges this finding on review ; however, it does not dispute
that Picatinny management officials knew of the appellant’s disclosures before
they decided not to select her. PFR File, Tab 3 at 16 (stating that the agency
“freely adm its” that it was aware of the appellant’s alleged whistleblowing prior
to the personnel action in question); IAF, Tab 24 at 4- 5 (same). It also does not
dispute that the length of time between the appellant’s disclosures and her nonselection was sufficiently short to satisfy the timing prong of the test.
PFR File, Tab 3 at 16- 18. The agency contends that the appellant nonetheless
failed to prove contributing factor because the knowledge/timing test also “requires a reasonable person standard as to that knowledge being a contributing
factor to the personnel action” and the appellant has not met that standard. Id.
at 16.
¶22 This argument is unpersuasive. As previously indicated , once an appellant
has satisfied the knowledge/timing test, she has met her burden of proving
contributing factor. Scoggins, 123 M.S.P.R. 592
, ¶ 21 . The appellant clearly has
9 Although it is unclear exactly when the agency decided not to select the appellant for
the EA position, the agency contends that the appellant’s nonselection occurred on or
about October 31, 2012. IAF, Tab 4 at 8.
11
satisfied that test, a s it is undisputed that agency management officials knew of
the appellant’s whistleblowing disclosures and made the decision not to select her
within a period of time sufficiently short to satisfy the knowledge/timing test.
Under these circumstances, we a gree with the administrative judge that the
appellant proved that her protected disclosures were a contributing factor in her
nonselection. ID at 21.
The agency failed to show by clear and convincing evidence that it would have
nonselected the appellant f or the EA position absent her protected disclosures.
¶23 When, as in this case , an appellant shows by preponderant evidence that she
made protected disclosures and that those disclosures were a contributing factor
in the decision to take a personnel action, the burden shifts to the agency to prove
by clear and convincing evidence th at it would have taken the personnel action in
the absence of the whistleblowing. See 5 U.S.C. § 1221 (e)(2); Scoggins,
123 M.S.P.R. 592, ¶ 26. In determining whether an agency has met its burden,
the Board generally considers the following factors: (1) the strength of the agency ’s evidence in support of its action; (2) the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration,
185 F.3d 1318 , 1323 (Fed. Cir. 1999).
Factor (1) does not apply straightforwardly to this case, however, as the personnel action at issue here is not disciplinary in nature, and therefore does not require supporting evidence of misconduct. Gonzale s,
101 M.S.P.R. 248, ¶ 12. Instead,
it is appropriate to consider instead the broader question of whether the agency had legitimate reasons for the appellant’s nonselection. Id.; see Schnell v.
Department of the Army,
114 M.S.P.R. 83, ¶¶ 17, 23 (2010) (applying Gonzales
in adjudicating a nonselection for a temporary position). The U.S. Court of
Appeals for the Federal Circuit has further clarified that “[e]vidence only clearly
12
and convincingly supports a conclusion when it does so in the aggregate
considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.” Whitmore v. Department of Labor,
680 F.3d 1353
, 1368 (Fed. Cir. 2012).
¶24 Regarding the first Carr factor, the administrative judge found that the
agency’s explanation for not selecting the appellant lacked credibility because it
was “riddled with inconsistencies” and that the agency “utterly failed to justify its
selection deci sion.” ID at 23- 24. In making this finding, t he administrative judge
noted that the selecting official and two other management officials testified
during the hearing that the appellant was not suited for the EA position for the
following reasons: (1) t he appellant had problems getting along with coworkers;
(2) she had “leave usage” issues; and (3) she frequently demanded teleworking
arrangements. ID at 24. The administrative judge found that none of these
reasons for refusing to select the appellant w ere supported by the evidentiary
record. Id. In particular, the administrative judge found that the agency’s claim
that the appellant had trouble getting along with coworkers was directly
contradicted by management in the appellant’s 2010- 2011 performanc e
evaluation, as she received the highest possible rating under the categ ory
“Working Relationships & Communications. ” ID at 15, 24; IAF, Tab 22 at 89.
¶25 The administrative judge further noted that the appellant’s second- line
supervisor, who criticized the appellant’s ability to work with other
administrative assistants and cast doubt on her leadership ability during the hearing, praised the appellant’s performance on her evaluation form . ID at 1 5.
As the administrative judge noted, t he supervisor stated i n his Senior Rater
comments that the appellant could be relied on to train and assist senior
administrative assistants on various tasks, had the capability and desire to excel
in positions well above the administrative level, and had outstanding potential to
succeed in a position of higher authority and responsibility. ID at 15- 16; IAF,
13
Tab 22 at 89. The administrative judge also found management’s purported
concern about the appellant’s request for telework “an odd one,” given that s he
made the request s o that she could work for the agency while she was out on
maternity -related sick leave, instead of being unable to make any work- related
contributions during that time. ID at 14.
¶26 On review, the agency argues that, because the appellant was applying for a
GS-09 position and the performance evaluation pertains to her performance in a
GS-08 position, the administrative judge should have given less weight to the
appellant’s performance evaluation and more weight to the testimony of agency
officials regarding their concerns about the appellant’s potential for
accomplishing GS- 09 level work . PFR File, Tab 3 at 18. This argument is
unpersuasive. If the appellant had difficulty getting along with others, that
should have been reflected in her performance evaluation. Her excellent rating in
all categories, including “Working Relationships & Communications,” and the
praise she received from agency management in her performance evaluation,
severely undermine the legitimacy of the agency’s reasons for its decision not to
select her for the EA position. Accordingly, we agree with the administrative
judge’s assessment of the first Carr factor and find that the agency did not have
legitimate reasons for not selecting the appellant.
¶27 We next consider the second Carr factor, the strength of any motive to
retaliate on the part of any agency officials who were involved in the decision in
question . As the administrative judge noted in the initial decision, although the
appellant’s protected disclosures exposed misconduct by personnel from the
Department of the Air Force, rather than the Department of the Army, the
evidence shows that the ramifications of the appellant’s disclosures were not
confined to the Air Force. ID at 22. For example, the record contains a
December 6, 2011 email from a Washington Post reporter notifying the appellant
of DO D personnel’s reaction to a Facebook post in which she stated that an
14
article about Dover MAO would be published soon. IAF, Tab 23 at 299. In the
email, the reporter states that the appellant “gave some DoD people a heart
attack” and that D OD personnel were “really worried” about the upcoming
article. Id. Thus, as the administrative judge found, the record shows that the
appellant’s disclosures were a source of anxiety for DOD personnel other than Air
Force officials. ID at 22. Further, because Representative Holt decided not to
vote for the NDAA of 2012, in part due to the appellant’s disclosures, and the
NDAA provides funding to all D OD agencies , those disclosures arguably
jeopardized funding for every agency in D OD. Id.; IAF, Tab 21 at 59- 60.
¶28 In evaluating the second Carr factor, we also have considered the court’s
decision in Whitmore , 680 F.3d at 1371 , which cautioned the Board against taking
an unduly dismissive and restrictive view of retaliatory motive. The Whitmore
court stated that, “[t]hose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Id .
at 1370. Applying this broader view of retaliatory motive, the court has found
that an official may have a retali atory motive even if he is not “directly involved
in the work at issue in an employee’s disclosu re.” Miller v. Department of
Justice, 842 F.3d 1252
, 1261 -62 (Fed. Cir. 2016). In another case , an agency
official took a personnel action against a whistleblower employee, but that
official was not personally implicated in the employee’s disclosures, which
concerned congressional testimony by a different agency official. The court
determined that the Board’s administrative judge erred by failing to consider
whether the agency official who took the personnel action nonetheless had a
“professional retaliatory motive” against the employee because his disclosures
regarding the alleged inaccuracy of an agency Under Secretary’s congressional
testimon y “implicated the capabilities, performance, and veracity of [agency]
15
managers and employees, and implied that the [agency] deceived [a] Senate
Committee.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004 ,
1008 -09, 1018-19 (Fed. Cir. 2019).
¶29 In this matter, although none of the agency officials involved in the
decision not to select the appellant was directly implicated in the mishandling of
service members’ remains, the misconduct the appellant disclosed was egregious
and her disclosures generated a significa nt amount of negative public ity for the
DOD. Given these circumstances, the appellant’s disclosures reflected poorly on
DOD officials as representatives of the general institutional interests of the D OD,
which is sufficient to establish a retaliatory moti ve. See Whitmore, 680 F.3d
at 1370; Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 69 (2011).
We therefore find that the agency officials involved in the decision not to select the appellant h ad some motive to retaliate against her for her disclosures .
¶30 As for the third Carr factor, there is no record evidence concerning the
agency’s treatment of similarly situated nonwhistleblowers. As previously
explained, 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 produce evidence concerning each and
every Carr factor, and “the absence of any evidence r elating to Carr factor three
can effectively remove that factor from the analysis,” 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 p rove its case overall.” Whitmore, 680 F.3d at 1374 -75.
Moreover, because the agency bear s the burden of proof at this stage of the
analysis , when the agency fails to introduce relevant comparator evidence, the
third Carr factor cannot favor 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, the agency has
16
failed to proffer any evidence pertaining to Carr factor three. Under these
circumstances, Carr factor 3 cannot weigh in the agency’s favor.
¶31 We therefore find that the agency did not have legitimate reasons for its
failure to select the appellant for the EA position, that the agency officials
involved in the decision had some motive to retaliate, and that the agency’s
failure to provide evidence in support of Carr factor 3 does not favor the agency .
Thus, we agree with the administrative judge that the agency failed to prove by
clear and convincing evidence that it would have taken the same action absent the
appellant’s protected disclosures.10 ID at 24. We therefore agree with the
administrative judge ’s determination that the appellant is entitled to corrective
action. Id.
The agency’s evidentiary arguments provide no basis to disturb the initial
decision .
¶32 The agency also argues on review that the administrative judge did not
follow “required evidentiary procedures” and erred in rel ying on documents that
were not properly admitted as evidence during the hear ing. PFR File, Tab 3 at 5,
7-11. In addition, the agency claims that the administrative judge improperly
considered hearsay evidence, such as excerpts from Representative Holt’s speech.
Id. These arguments are unavailing, as it is well settled that strict adherence to
the Federal Rules of Evidence and of Civil Procedure is not mandatory in
administrative proceedings , Crawford v. Department of the Treasury, 56 M.S.P.R.
10 Although the administrativ e judge did not explicitly address the second and third
Carr factors in his analysis, we find it unnecessary to remand the appeal because
resolution of the clear and convincing issue in this case does not require additional
credibility determinations or fu rther development of the record. Cf . Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537 , ¶ 37 (2013) (finding that the
admini strative judge was in the best position to reweigh the evidence on the clear and
convincing issue because she was the one who heard the live testimony and made
credibility determinations).
17
224, 233 (1993), and hearsay evidence is admissible in Board proceedings,
Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221 , ¶ 15 (2014).
¶33 The agency further argues on review that the administrative judge erred by
allowing the appellant to testify as an expert in Air Force mortuary affairs policy ,
but not grant ing its post- hearing request to present rebuttal expert testimony from
Dover MAO personnel familiar with the regulations at issue and the handling of
remains by the Air Force. PFR File, Tab 3 at 11-16; IAF, Tab 45. The agency
asserts that such testimony was necessary for the appellant to prove that Dover
MAO’s handling of service members’ remains violated a law, rule, or regulation.
PFR File, Tab 3 at 15.
¶34 An administrative judge has wide discretion to control the proceedings
before him, to receive relevant evidence, and to ensure that the record on
significant issues is fully developed. See Tisdell v. Department of the Air Force,
94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41 (b). The hearing transcript
shows that the appellant did not testify as an expert witness in mortuary affairs.
Hearing Transcript, Volume 2 (HT2) at 517 -26 (testimony of the appellant).
Rather, the administrative judge merely questioned the appellant as to her
knowledge of Dover MAO policy regarding the disposition of service members ’
remains. Id. at 519- 26 (testimony of the appellant). This line of questioning was
entirely appropriate and agency counsel did not object to it during the hearing.
Id. Also, agency counsel had the opportunity to question the appellant about her
testimony , but chose not to do so. HT2 at 526 (testimony of the appellant).
¶35 Further, even assuming that expert testimony was necessary for the
appellant to establish that Dover MAO’s mishandling of service members ’
remains violated a law, rule, or regulation, the absence of such testimony
provides no reason to disturb the initial decision because it did not affect the
outcome of the case. See Karapinka v. Department of Energy, 6 M.S.P.R. 124,
127 (1981) (explaining that an administrative judge’s procedural error is of no
18
legal consequence unless it is shown to have adversely affected a party’s
substantive rights). As previously discussed, the appellant was not required to
prove that a violation of law, rule, or regulation had occurred. Rather, she was
required to prove that a disinterested observer could reasonably conclude that the actions of Dover MAO personnel evidenced a violation of a law, rule, or
regulation. Lachance, 174 F.3d at 1381. Satisfying this standard did not require
expert testimony .
The agency has failed to prove its allegation of judicial bias .
¶36 The agency also raises an apparent claim of bias on review, alleging that the
administrative judge “was obviously sympathetic” to the appellant and was so
outraged by the mishandling of her husband’s remains that he decided to rule against the agency, regardle ss of the evidence. PFR File, Tab 3 at 5, 14 . It
further contends that, in the initial decision, the administrative judge engaged in a
“shocking personal attack” on agency counsel when addressing the agency’s argument in its post- hearing brief that, because D OD Directive 1300.22 does not
specify what qualifies as the “requisite care, reverence, and dignity befitting [the remains] and the circumstances . . . what we have here is more of a philosophical
or theological debate than anything else.” Id. at 14.
¶37 Although the agency does not specifically identify the administrative
judge’s alleged “personal attack” on agency counsel, it appears to be referring to
the following statement by the administrative judge in response to the above
argument: “The agency should be disabused of the notion that a landfill is a
dignified resting place for the remains of a U.S. Army Soldier who gave his life
in the service of his nation.” ID at 18. This statement is not a personal attack on
agency counsel. Moreover, given the reprehensible manner in which Dover MOA
personnel handled the remains of the appellant’s husband and other service
members , we find the administrative judge’s statement to be a measured and
reasonable response to the agency ’s appalling suggestion that dumping service
19
members ’ remains in a landfill could ever qualify as “the requisite care,
reverence, and dignity befitting the remains and the circumstances. ”
¶38 Further, 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 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)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),
aff’d per curia m, 498 F. App’x 1 (Fed. Cir. 2012). The agency’s allegations on
review, which do not relate to any extrajudicial conduct by the administrative judge, neither overcome the presumption of honesty and integrity that accompanies an administrative judge, nor establish that he showed a deep- seated
favoritism or antagonism that would make fair judgme nt impossible.
ORDER
¶39 We ORDER the agency to appoint the appellant to the position of Executive
Assi stant, GS- 03019- 09, at Picatinny Arsenal, New Jersey. 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.
¶40 We also ORDER the agenc y 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,
20
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.
¶41 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 to describe the
actions it took 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).
¶42 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 in 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).
¶43 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
documen tation 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.
¶44 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (
5 C.F.R.
§ 1201.113 ).
21
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
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 DAT E 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 TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214
(g) or 1221(g). The regulations may
be found at 5 C.F.R. § § 1201.202 , 1201.202 and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
22
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
NOTICE OF APPEAL RIG HTS11
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
11 Since the issuance of the initial decision in this matter, the Bo ard may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
23
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
24
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court‑ appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
25
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 petitio n to the court at the following
address:
12 The original statutory provision that provided for judicial review of certa in
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
26
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S . Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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:
/s/ for
Jennifer Everling
Acting 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. Missin g 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 under taken 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 annuit y 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 leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BA CK 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 decisi on.
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 document ation 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 t he 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/Pe rsonnel Operations at 504- 255-4630. | SMITH_GARILYNN_PH_1221_16_0010_W_1_OPINION_AND_ORDER_1915929.pdf | 2006-07-17 | null | PH-1221-16-0010-W-1 | P |
43 | https://www.mspb.gov/decisions/precedential/MCCLENNING_CHONG_U_SF_0752_15_0702_I_6_OPINION_AND_ORDER_1912124.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 3
Docket No. SF-0752 -15-0702 -I-6
Chong U. McClenning,
Appellant,
v.
Department of the Army,
Agency.
March 31 , 2022
David Weiser , Esquire, Austin, Texas, for the appellant.
Ryan K . Bautz , Fort Shafter, Hawaii, for the agency.
Brandon Iriye , USAG Daegu, South Korea, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan A. Leavitt , Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the following reasons, we DENY the petition for
review and AFFIRM the initial decision. We find that the appellant’s argument
regarding the appointment of the administrative judge, which she raised for the
first time on petition for review, is not timely raised.
BACKGROUND
¶2 The appellant was employed by the agency as an Information Assurance
Manager, GS -0301 -12, in Daegu, South Korea. McClenning v. Department of the
2
Army , MSPB Docket No. SF -0752 -15-0702 -I-1, Initial Appeal File (IAF), Tab 6
at 76. In April 2015, the agency proposed the appellant’s removal for conduct
unbecoming a Federal employee (six specifications), unauthorized possession of
Governm ent property (one specification), and lack of candor (six specifications).
Id. at 76 -87. The appellant responded to the proposed removal both orally and in
writing. Id. at 21, 34 -75. On May 19, 2015, the agency issued a decision
sustaining all of the c harges and specifications against her and removing her
effective June 18, 2015. Id. at 21 -32.
¶3 The appellant timely filed this appeal challenging her removal. IAF, Tab 1.
She requested a hearing. Id. at 2. The administrative judge dismissed the appeal
without prejudice five times between August 2015 , and May 2017 , pending the
resolution of criminal proceedings in South Korea. McClenning v. Department of
the Army , MSPB Docket No. SF -0752 -15-0702 -I-5, Appeal File, Tab 4, Initial
Decision (May 25, 2017). On June 13, 2018, after holding the appellant’s
requested hearing, the administrative judge issued an initial decision affirming
the appellant’s removal. McClenning v. Department of the Army , MSPB Docket
No. SF -0752 -15-0702 -I-6, Appeal File (I -6 AF), Tab 52, Initial Decision (I -6 ID).
The administrative judge found that the agency proved four of the six
specifications of conduct unbecoming a Federal employee and all six
specifications of lack of candor, but that it failed to prove either the remaining
two specifications of conduct unbecoming a Federal employee or the charge of
unauthorized possession of Government property. I -6 ID at 3 -32. He further
found that the agency established a nexus between the sustained charges and the
efficiency of the servic e, id. at 32, and that the appellant failed to prove her
affirmative defenses of a due process violation, harmful procedural error,
whistleblower reprisal, or discrimination based on race, national origin, or sex,
id. at 33 -42. Finally, the administrative judge found that the penalty of removal
was within the tolerable limits of reasonableness for the sustained misconduct.
Id. at 42-46.
3
¶4 The appellant has filed a timely petition for review of the initial decision on
July 15, 2018. Petition for Review (PFR ) File, Tab 1. On petition for review, she
argues for the first time that the initial decision should be reversed because the
administrative judge was not properly appointed under the Appointments Clause
of the U.S. Constitution.1 Id. at 3. In support o f that argument, she cites the
decision of the U.S. Supreme Court in Lucia v. Securities & Exchange
Commission , 138 S. Ct. 2044 (2018) , which was issued a few days after the initial
decision in this case. PFR File, Tab 1 at 3. As to the merits of the initial
decision, the appellant resubmits the closing brief she filed before the
administrative judge. Id. The agency has responded in opposition to the petition
for review. PFR File, Tab 3.
ANALYSIS
The appellant did not timely raise her argument regarding the appointment of the
administrative judge.
Recent Supreme Court precedent does not preclude the Board from
applying timeliness and issue exhaustion requirements to Appointments
Clause claims.
¶5 In Lucia , the Supreme Court held that administrative law judges (ALJs) of
the Securities & Exchange Commission (SEC) qualify as Officers of the United
States subject to the Appointments Clause , rather than as mere employees.
138 S. Ct. at 2049, 2052 -55. Because SEC ALJs were appointed by SEC staff
members , rather than the Commission itself, the Court held that the appointment
of those ALJs violated the Appointments Clause. Id. at 2050 -51. The Court
further held that because Lucia had made a timely challenge to the constitutional
1 Under the Appointments Clause, the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . .
but the Congress may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. art. II, § 2, cl. 2.
4
validity of the appointment of the ALJ who adjudicated his case, he was entitled
to relief in the form of a new hearing before a different, properly appointed
official . Id. at 2055.2
¶6 The Court in Lucia did not specifically define what constitutes a timely
challenge to an appointment , but it cited Ryder v. United States , 515 U.S. 177 ,
182-83 (1995), in this regard. Lucia , 138 S. Ct. at 2055. In Ryder , the Court held
that a challenge concern ing the appointment of j udges wa s timely because the
challenging party raised it “before those very judges and prior to their actio n on
his case.” Ryder , 515 U.S. at 182. In so finding, the Court distinguished the facts
of Ryder from those of three other cases in which the chal lenges to the judges’
authority were untimely because they were raised after the judges had decided
those cases and the complaining parties had not objected to the judges’ authority
during the proceedings before them. Id. at 180 -82.
¶7 Since the Supreme Cour t issued its Lucia decision, a number of Federal
courts have considered what constitutes a timely Appointments Clause challenge
regarding an administrative adjudication. Several courts have held that parties
forfeit Appointment s Clause claims that are not timely and properly raised before
the adjudicating administrative agency. For example, courts have rejected as
untimely claims that were not raised before the Department of Labor’s Benefits
Review Board, as well as claims that were raised before the Bene fits Review
Board but that had not been raised in accordance with that entity’s regulations.
Joseph Forrester Trucking v. Director, Office of Workers’ Compensation
Programs , 987 F.3d 581 , 587 -93 (6th Cir. 2021) (rejecting as untimely an
Appointments Clause claim that was raised before the Benefits Review Board , but
not in earlier proceedings before a Department of Labor ALJ, contrary to Benefits
2 The holding in Lucia applied only to SEC ALJs and therefore did not address whether
the Board’s method of appointing administr ative judges violated the Appointments
Clause, and we do not reach that question here.
5
Review Board regulations ); David Stanley Consultants v. Director, Office of
Workers’ Compensation Programs , 800 F. App’x 123, 127 -28 (3d Cir. 2020)
(nonprecedential) (holding that the employer forfeited its Appointment s Clause
claim when it failed to raise the claim in its opening brief to the Benefits Review
Board , which is required by that entity’s regulations); Zumwalt v. National Steel
& Shipbuilding Co mpany , 796 F. App’x 930, 931 -32 (9th Cir. 2019)
(nonprecedential) (holding that the claimant forfeited his Appointments Clause
claim when he raised it for the first time in a second reconsideration motion to the
Benefits Review Board , contrary to the relevant regulations ); Energy West Mining
Company v. Lyle , 929 F.3d 1202 , 1206 ( 10th Cir. 2019) (rejecting as untimely an
Appointments Clause claim that was not raised before the Benefits Review
Board); Island Creek Coal Company v. Bryan , 937 F.3d 738 , 750 -54 (6th Cir.
2019) (rejecting for failure to exhaust Appointments Clause claims that were
raised for the first time in motions for reconsid eration of decisions of the Benefits
Review Board , contrary to its regulations and interpretation thereof ).
Multiple courts also have rejected Appointments Clause claims that were not first
raised before the SEC. Gonnella v. Securities & Exchange Commiss ion, 954 F.3d
536, 54 4-46 (2d Cir. 2020); Malouf v. Securities & Exchange Commission ,
933 F.3d 1248 , 1255 -58 (10th Cir. 2019) ; Cooper v. Securities & Exchange
Commission , 788 F. App’x 474, 474 -75 (9th Cir. 2019) (nonprecedential) .
¶8 Many of the post -Lucia Appointments Clause cases have involved claims
before the Social Security Administration (SSA). In Carr v. Saul , 141 S. Ct.
1352 (2021), the Supreme Cou rt resolved a split among the circuits and held that
claimants are not required to exhaust Appointments Clause claims before SSA to
preserve them for judicial review. Id. at 1362. Although Carr is controlling
precedent for claims arising out of Social Se curity disability adjudications, we
find for the reasons set forth below that it does not control in the context of Board
appeals.
6
¶9 The Court has recognized that the doctrine of administrative remedy
exhaustion requires parties to first raise an issue before the appropriate
administrative agency prior to seeking judicial review on that topic. Id. at 1358.
It noted that, u sually, rules of issue exhaustion are governed by statute or
regulation. Id. (citing Sims v. Apfel , 530 U.S. 103 , 107 -08 (2000)).
Further, proper exhaustion of claims before an administrative agency “demands
compliance with [that] agency’s deadli nes and other critical procedural rules
because no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.” Woodford v. Ngo , 548 U.S.
81, 90-91 (2006).
The Board’s regulations require that issues first be raised before the
administrative judge before they may be raised with the full Board on
petition for review.
¶10 The issue in Carr was whether the Federal courts should recognize an issue
exhaustion requirement in Social Security disability proceedings when none is
specifically imposed by statute or regulation. Id. at 1358. In the instant matter ,
by contrast, the issue is whether an App ointments Clause claim should be subject
to the Board’s existing regulations and precedent requiring parties to timely raise
issues during Board adjudication s. Proceedings before the Board are a key
element in the “comprehensive system” established by the Civil Service Reform
Act of 1978 (CSRA) “for reviewing personnel action[s] taken against [F]ederal
employees.” Elgin v. Department of the Treasury , 567 U.S. 1, 5 (2012) (quoting
United States v. Fausto , 484 U.S. 439 , 455 (1988)). “The statutory provisions [in
the CSRA] for appeals to the [B]oard give the [B]oard broad discretion in
handling appeals and controlling its own docket by requiring that appeals be
processed in accordance with” its regulations. Phillips v. U.S. Postal Service ,
695 F.2d 1389 , 1390 -91 (Fed. Cir. 1982).
¶11 Under the authority granted to it by Congress in the CSRA, see 5 U.S.C.
§ 1204 (h), the Boa rd has prescribed regulations governing the proceedings before
7
it. Pursuant to those regulations, the Board generally does not accept arguments
raised after the close of the record before the administrative judge. 5 C.F.R.
§ 1201.59 (c). In addition, 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 d espite the party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) ;
5 C.F.R. § 1201.115 (d). Our reviewing court, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit), has consistently upheld the Board’s regulatory
requirement that parties must raise arguments before the as signed administrative
judge, or the full Board may properly decline to review those arguments.
E.g., Carson v. Department of Energy , 398 F.3d 1 369, 1376 (Fed. Cir. 2005)
(finding that the Board properly declined to review a claim that was not
adjudicated by the administrative judge); Bosley v. Merit Systems Protection
Board , 162 F.3d 665 , 668 (Fed. Cir. 1998) (concluding that a party in a Board
proceeding was required to raise an issue before the administrative judge to
preserve it for court review and that the court would not consider an issue raised
for the first time in a petition for review to the full Board); Meglio v. Merit
Systems Protection Board , 758 F.2d 1576 , 1577 -78 (Fed. Cir. 1984) (affirming
the Board’s decision to deny a petition for review when the appellant failed to
raise the salient issue before the administrative judge). As the Federal Circuit
determined:
the [B]oard has promulgated its regulations in accordance with the
law and Congress’ desire to streamline and prevent duplicative
efforts in processing employee complaints. Where petitioner fails to
frame an issue before the presiding official and belatedly attempts to
raise that same issue before the full [B]oard, and the [B]oard
properly denies review of t he initial decision, petitioner will not be
heard for the first time on that issue in the Federal Circuit.3
3 Even when the Federal Circuit has exercised its discretion to allow a claim to be
raised for the first time on judicial review after the completion of an administrativ e
8
Meglio , 758 F.2d at 1577.
¶12 Here, the appellant does not allege that she discovered new and material
evidence that was previously unavailable. Rather, her argument appears to be
that she discovered a new legal argument when the Supreme Court decided Lucia .
In a few cases, the Board has cited intervening legal precedent as good cause for
an untimely file d petition for review .4 For example, in Duft v. Office of
Personnel Management , 33 M.S.P.R. 533 (1987), the Board found good cause for
an untimely petition for review in light of new decisions from the Supreme Court
and the Federal Circuit holding that successful appellants in retirement appeals
could obtain attorney fees. In denying the appellant’s request for fees, the
administrative judg e had relied upon the prior binding Federal Circuit precedent
holding that fees were not available in retirement cases. The Board determined
that the appellant reasonably understood that it would be fruitless and costly for
him to appeal that ruling at th at time. Id. at 535. Thus, because the appellant had
filed his petition for review shortly after learning of the change in the controlling
precedent, the Board found good cause for the filing delay. Id.
¶13 In this matter, by contrast, there was no binding precedent regarding the
appointment of Board administrative judges at the time the record before the
adjudication, it has nevertheless required that those claims be timely raised in
accordance with its procedural rules. Compare Arthrex, Inc. v. Smith & Nephew, Inc. ,
941 F.3d 1320 , 1326 -27 (Fed. Cir. 2019) (considering an Appointments Clause claim
regarding Administrative Patent Judges of the Patent and Trademark Appeals Board
(PTAB) even though that claim was not raised before PTAB itself beca use PTAB had
not and could not correct the problematic appointments itself ), vacated and remanded
on other grounds sub nom. United States v. Arthrex, Inc. , 141 S. Ct. 1970 (2021),
with Immunex Corp oration v. Sanofi -Aventis U.S. LLC , 977 F.3d 1212 , 1223 n.10
(Fed. Cir. 2020 ) (rejecting as untimely an Appointments Clause claim regarding PTAB
that was raised for the first time in a reply brief filed with the Federal Circuit , rather
than in the opening brief ), cert denied , 141 S. Ct. 2799 (2021) .
4 Although the good cause standard itself does not apply to arguments presented for the
first time on petition for review, we find that the relevant standards are sufficiently
similar that the Board’s precedent regarding good cause is useful to our analysis here.
9
administrative judge closed in April 2018. I -6 AF, Tab 34 at 12. Therefore, the
appellant did not have grounds to believe that raising an Appointments Clause
claim would have been fruitless. See Island Creek Coal Company v. Wilkerson ,
910 F.3d 254 , 257 (6th Cir. 2018) (rejecting the argument that Appointments
Clause challenges lacked merit until the Supreme Court decided Lucia ). By the
time the record closed before the administrative judge in this appeal , one court of
appeals had already held that SEC ALJs are inferior officers subject to the
Appointments Clause, Bandimere v. Securities & Exchange Commission ,
844 F.3d 1168 (10th Cir. 2016 ), reh’g and reh’g en banc denied , 855 F.3d 1128
(10th Cir. 2017), cert. denied , 138 S. Ct. 2706 (2018), and the Supreme Court had
granted certiorari to address that issue in Lucia v. Securities & Exchange
Commission , 138 S. Ct. 736 (U.S. Jan. 12, 2018) (No. 17 -130). Thus, we hold
that the appellant’s purported discovery of a new legal theory is insufficient to
justify her failure to raise the Appointments Clause argument bef ore the
administrative judge. See In re DBC , 545 F. 3d 1373 , 1377 -79 (Fed. Cir. 2008)
(rejecting a newly discovered Appointments Clause argument raised for the first
time on judicial review because the party failed to raise it first before the
administrative board) .
¶14 In addition to the general standards for raising new arguments after the
close of the record, the Board’s regulations impose particular requirements on
litigants who wish to challenge the qualifications of the individual assigned to
hear their cases. Specifically, a party seeking to disqualify a judge must file a
motion to disq ualify as soon as the party has reason to believe there is a basis for
disqualification and, if the administrative judge denies that motion, the party must
request certification of an interlocutory appeal or the disqualification issue is
considered waived. 5 C.F.R. § 1201.42 (b)-(c); see Thomas v. Office of Personnel
Management , 350 F. App’x 448, 451 (Fed. Cir. 2009) (finding that the appellant
10
had waived her request for recusal of the administrative judge by failing to
comply with the provisions of 5 C.F.R. § 1201.42 ).5 In the absence of this
requirement, a party before a Board administrative judge who believed there was
a basis for disqualification could wait until after the initial decision was issued
and then seek disqualification on petition for review if the initial decision was
unfavorable. Allowing such gamesmanship by parties would waste the Board’s
resources to the extent that disqualification of an administrative judge after the
initial decision would result in relitigation of the appeal. The same policy
considerations that support the Board’s regulation regarding the procedures for
raising disqualification cla ims also support our decision here regarding the
appellant’s Appointments Clause claim. As recognized in Freytag v.
Commissioner of Internal Revenue , 501 U.S. 868 , 895 (1991) (Scalia, J.,
concurring in part and concurring in the judgment), the trial phase of a case is
when the litigants’ arguments first must be raised and considered; permitting an
Appointments Clause claim to be raised for the fir st time on appeal would
encourage “sandbagging,” i.e., for strategic reasons, allowing the trial court to
pursue a certain course only to argue on appeal that it constituted reversible error
if the outcome of the case was unfavorable.
¶15 We acknowledge that c ourts have on occasion considered Appointments
Clause claims even if those claims were not timely raised under normal standards.
See, e.g. , Freytag , 501 U.S. at 878 -89 (considering an Appointments Clause
challenge regarding Special Trial Judges of the Tax Court even though the litigant
failed to raise that challenge before the Tax Court itself). However, the courts
have never held that an Appointments Clause challenge must be heard in any case
regardless of when it is raised; to the contrary, the courts h ave used language
5 The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662 ,
¶ 13 n.9 (2016).
11
suggesting that consideration of an untimely Appointments Clause claim should
be done only in “rare cases.” See id. at 879; In re DBC , 545 F.3d at 1380
(concluding that the Supreme Court never stated that Appointments Clause
challenges must be heard regardless of waiver). Under the circumstances
presented in this matter, we are not convinced that this qualifies as one of those
“rare cases.”
¶16 The Board’ s regulations reserve to it the authority to consider any issue in
an appeal before it. 5 C.F.R. § 1201.115 (e). Pursuant to that authority, we may
exercise our discretion to consider a n untimely Appointments Clause claim in an
appropriate case. However, we find no basis to exercise that discret ion on the
facts of this case.
The issue exhaustion requirements set forth in the Board’s regulations are
justified based on the adversarial nat ure of its proceedings.
¶17 In declining to require Social Security claimants to exhaust Appointments
Clause claims before the agency, the Court in Carr noted several characteristics
about Social Security disability adjudications that make an issue -exhaustion rule
inappropriate in that context. First, the Court noted that whereas typical
administrative review schemes have issue -exhaustion requirements imposed by
statute or regulation, SSA was asking the Court to impose a judicially -created
requirement. Carr , 141 S. Ct. at 1358. The Court held that whether a court
should impose a requirement of issue exhaustion “depends on the degree to which
the analogy to normal adversarial litigation applies in a particular administrative
proceeding.” Id. (quoting Sims , 530 U.S. at 109).
¶18 The Court in Carr relied on the nonadversarial nature of Social Security
disability adjudications in determining that an issue exhaustion requireme nt was
inappropriate in that context . It explained that the justification for requiring issu e
exhaustion is greatest when it is expected that the parties will develop the issues
in an adversarial administrative proceeding, but that the rationale for requir ing
issue exhaustion is much weaker when the administrative proceeding is not
12
adversarial in nature. Carr , 141 S. Ct. at 1359 (citing Sims , 530 U.S. at 110).
The Court noted that in proceedings before SSA, the ALJ is responsible for
developing the factual record and arguments both for and against granting
benefits , and the Commissioner has no representative before the ALJ opposing
the benefits claim . Carr , 141 S. Ct. at 1359 (citing Sims , 530 U.S. at 111).
¶19 The Board’s regulations establish a procedure that is much more
adversarial. The parties are responsible fo r developing the factual record and
presenting their evidence and arguments to the administrative judge. Unlike SSA
disability proceedings, both parties may be represented before the Board.
5 C.F.R. § 1201.31 . Further, the parties each must meet their respective burdens
of proof in establishing their claims and defenses. 5 C.F.R. § § 1201.56 -.57.
An appellant initiate s a Board proceeding by filing an initial appeal that must
include a statement of the reasons why the appellant believes the agency action at
issue is wrong. 5 C.F.R. § 1201.24 (a)(4). T he agency’s response to the appeal
must include a statement of the reasons for the action and all documents
contained in the agency’s record of the action . 5 C.F.R. § 1201.25 (b).
The parties are expected to start and complete discovery with minimal
intervention from the Board. 5 C.F.R. § § 1201.71 -.75. The appellant may
generally raise additional claims or defenses before the end of the conference(s)
held to define the issues in the case; after that point, the appellant may raise
additional claims or defenses only upon a showing of good cause. 5 C.F.R.
§ 1201.24 (b). The appellant generally has a right to a hearing at which both
parties present their cases . 5 C.F.R. § § 1201.24 (d), 1201 .51, 1201. 58. Once the
record in an appeal closes, either after the hearing or , if the appellant waived the
hearing, on the deadline set by the administrative judge for written submissions,
the Board will not accept additional evidence o r argument unless there is a
showing that it was not readily available before the record closed or that it is in
rebuttal to new evidence or argument submitted by the other party just before the
close of the record. 5 C.F.R. § 1201.59 (a)-(c). A petition for review of an initial
13
decision must state the party’s objections to the initial decision supported by
references to applicable laws and regulations and specific references to the
factu al record. A party submitting new evidence or argument on petition for
review must explain why such evidence or argument was not presented before the
close of the record below. 5 C.F.R . § 1201.114 (b).
¶20 The Board’s regulations make clear that, unlike Social Security disability
proceedings, Board appeals are adversarial in nature . In such circumstances, “the
rationale for requiring issue exhaustion is at its greatest.” Carr , 141 S. Ct.
at 1359 (quoting Sims , 530 U.S. at 110).
The circumstances of the instant case are otherwise distinguishable from
those set forth in Carr.
¶21 The Court in Carr noted two additional factors in support of allowing
Social Security claimants to raise Appointments Clause claims for the first time
in Federal court. First, the Court noted that “agency adjudications are generally
ill suited to address structural constit utional challenges, which usually fall outside
the adjudicators’ area of technical expertise.” Carr , 141 S. Ct. at 1360.
Second, the Court recognized a futility exception to exhaustion requirements
when agency adjudicators would be powerless to grant the relief requested.
Id. at 1361. The Court specifically highlighted the fact that SSA’s administrative
review scheme did not afford claimants access to the Commissioner, “the one
person who could remedy their Appointments Clause challenges.” Id. We find
that neither of these factors apply to Board proceedings.
¶22 First, consideration of constitutional claims , such as the Appointments
Clause claim at issue here , is consistent with the Board’s role in adjudicating
appeals. The comprehensive system under the CSRA applies to constitutional
claims, whether facial or as -applied. Elgin , 567 U.S. at 12 -23. Thus, parties are
required to bring even their facial constitutional challenges to the Board, despite
the fact that the Board “has repeatedly refused to pass u pon the constitutionality
of legislation.” See id. at 16 (citing Malone v. Department of Justice ,
14
14 M.S.P.R. 403 (1983)). A party’s failure to raise a constitutional claim before
the Board generally precludes the party from raising that claim for the first time
when seeking judicial review of the Board’s decision. See Hansen v. Department
of Homeland Security , 911 F.3d 1362 , 1369 (Fed. Cir. 2018) (declining to address
a Fourth Amendment claim not raised before the Board). The requirement that a
party exhaust his administrative remedies by first raising a constitutional claim
during an administrative agency’s proceeding before raising it i n court has two
main purposes: (1) to provide the administrative agency with the opportunity to
correct its own errors regarding the programs it administers before being brought
into Federal court, and thereby “discourage[] disregard of the agency’s
procedures”; and (2) to promote judic ial efficiency because claims typically are
resolved faster and more economically during administrative agency proceedings
than they are in Federal court litigation. Woodford , 548 U.S. at 89-90. Thus, the
“unnecessary expenditure of the administrative re sources of the original Board
panel, the judicial resources of th[e] court, and the substantial delay and costs
incurred” in the litigation may be avoided. In re DBC , 545 F. 3d at 1378 -79.6
As explained previously, for similar reasons, the Board’s regula tions provide that
all issu es must first be raised before the administrative judge before the full
Board will consider them. 5 C.F.R. §§ 1201.59 (c), 1201.115(d); see Freytag ,
501 U.S. at 895 (Scalia, J., concurring in part and concurring in the judgement).
¶23 Additionally, it would not have been futile for the appellant to timely raise
an Appointments Clause claim before the administrative judge. Had the appellant
raised the Appointments Cl ause issue to the administrative judge before the close
of the record, the administrative judge could have certified the question for
6 Our reviewing court has recognized the value in having the Board address a
constitutional claim before the court considers it. See, e.g. , Helman v. Department of
Veterans Affairs , 856 F.3d 920 , 936 n.8 (Fed. Cir. 2017) (finding that whether the
Board’s administrative judges are inferior officers for purposes of the Appointments
Clause is “more appropriately dealt with by the [Board] in the first instance”).
15
interlocutory appeal to the Board. See 5 C.F.R. §§ 1201.42 (b)-(c), 1201.91.
The interlocutory appeal process permits the Board members, who are appointed
by the President and confirmed by the Senate, 5 U.S.C. § 1201 , to address an
issue while an ap peal is still pending before an administrative judge. 5 C.F.R.
§ 1201.91 . Thus, the interlocutory appeal process permits a party raising an
Appointments Clause claim to present that cla im to the Board’s principal officers.
¶24 Indeed, by the time the record closed before the administrative judge in this
appeal, another litigant before the Board had raised an Appointments Clause
claim before the administrative judge in his appeal. Flynn v. Securities
& Exchange Commission , MSPB Docket No. DC -1221 -14-1124 -M-1, Motion to
Vacate (Feb. 14, 2018). After initially dismissing the appeal without prejudice,
the administrative judge issued an order in April 2019 , certifying the
Appointments Clause iss ue for interlocutory appeal. Flynn v. Securities
& Exchange Commission , MSPB Docket No. DC -1221 -14-1124 -M-4, Order and
Certification for Interlocutory Appeal (Apr. 23, 2019).7 Thus, there is reason to
believe that, if the appellant here had timely raised her Appointments Clause
claim before the close of the record before the administrative judge, the
administrative judge issue would have certified the issue for interlocutory a ppeal
7 Another appellant before the Board raised an Appointments Clause claim in
two separate initial appeals filed shortly after the initial decision was issued in this
appeal. Jolley v. Department of Housing & Urban Development , MSPB
Docket No. AT-4324 -18-0576 -I-1, Initial Appeal (June 25, 2018) , MSPB Docket No.
AT-4324 -19-0041 -I-1, Initial Appeal (Oct. 15, 2018) . The administrative judge also
certified the Appointments Clause issue for interlocutory appeal in both of those
matters. Jolley v. Department of Housing & Urban Development , MSPB Docket Nos.
AT-4324 -18-0576 -I-2 & AT -4324 -19-0041 -I-1, Order and Certific ation for
Interlocutory Appeal (Apr. 23, 2019). Parties that have timely raised the Appointments
Clause issue in other appeals have generally had their appeals dismissed without
prejudice to refiling once the Board decides the interlocutory appeals or oth erwise
addresses the Appointments Clause issue. See, e.g. , Alvarez v. Department of Health
& Human Services , MSPB Docket No. DC -0432 -19-0122 -I-4, Initial Decision
(June 23, 2021).
16
and the Board would have had an opportunity to address the administrative
judge’s appointment before he issued an initial decision on the merits of the
appeal.
¶25 For the foregoing reasons, the instant appeal is dissimilar to Carr.
Because the appellan t failed to comply with the Board’s regulations by first
raising the Appointments Clause issue before the administrative judge, we will
not address the merits of the appellant’s Appointments Clause claim raised for the
first time on petition for review.
The appellant has not provided any basis to disturb the initial decision.
¶26 As to the merits of the initial decision, the appellant resubmits the closing
argument she submitted to the administrative judge. PFR File, Tab 1 at 3, 8 -58.
However, the administrat ive judge considered the appellant’s closing argument
and addressed it throughout his initial decision. A petition for review that merely
repeats arguments made below does not meet the criteria for Board review,
and we find no basis to disturb the explain ed findings of the administrative judge.
See Tigner -Keir v. Department of Energy , 20 M.S.P.R. 552, 553 (1984);
5 C.F.R. § 1201.115 . We therefore deny the petition for review.
ORDER
¶27 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
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
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.
17
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petitio n for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informati on about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
18
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pra ctice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono r epresentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC revi ew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If s o, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
19
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
20
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 Mad ison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will acc ept representation in a given case.
9 The original statutory provision that provided for judicial review of certain
whist leblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decis ions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 S tat. 1510.
21
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | MCCLENNING_CHONG_U_SF_0752_15_0702_I_6_OPINION_AND_ORDER_1912124.pdf | 2015-05-19 | null | SF-0752-15-0702-I-6 | P |
44 | https://www.mspb.gov/decisions/precedential/COWAN_RODNEY_CB_1216_16_0018_T_1_OPINION_AND_ORDER_1911389.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 2
Docket No. CB-1216 -16-0018 -T-1
Special Counsel,
Petitioner,
v.
Rodney Cowan,
Respondent.
March 29, 2022
Erica S. Hamrick , Esquire, Washington, D.C., for the petitioner.
Bryan Delius , Esquire, Sevierville, Tennessee, for the respondent.
BEFORE
Raymond A. Limon , Vice Chair
Tristian L. Leavitt , Member
OPINION AND ORDER
¶1 This case is before the Board on interlocutory appeal from the
administrative law judge ’s order staying the proceedings and certifying his ruling
that the parties’ Modified Settlement A greement cannot be approved because it is
inconsistent with Board prece dent and prohibitions in the Hatch Act set forth at
5 U.S.C. § 7323 (a). For the following reasons, we REVERSE the administrative
law judge ’s ruling , GRANT the parties’ joint motion to approve the agreement,
FIND, based on stipulations in the agreement, that the respondent violated the
Hatch Act by being a candidate for election to a partisan political office while he
was a full -time employee of the U.S. Postal Service (USPS), ORDER USPS to
2
suspend the respondent without pay for 180 days consistent with the terms of the
agreement , and DISMISS this matter as settled.
BACKGROUND
¶2 The Office of Special Counsel (OSC) initiated this proceeding by filing a
complaint for disciplinary action against the respondent for violating the Hatch
Act, which generally restricts the political activity of Federal employees.
Complaint File (C F), Tab 1 at 4. Specifically, OSC alleged that the respondent
violated 5 U.S.C. § 7323 (a)(3) and 5 C.F.R. § 734.304 by being a candidate for
the partisan political office of County Commissioner of Sevier County,
Tennessee, in the 2014 general election wh ile he was a full -time USPS employee
at the Seymour Post Office located in Sevier County, Tennessee. CF, Tab 1 at 5.
¶3 After the matter was assigned to an administrative law judge for
adjudication, the par ties filed a joint motion for approval and enforceme nt of their
settlement a greement. C F, Tab 3. Under the te rms of the agreement, the
responde nt admitted that he violated the Hatch Act’s prohibition against being a
candidate for partisan political office while being a full -time USPS employee
during the 2 014 general election, and he agreed and accepted that, as a penalty for
his action, he would be suspended without pay from his USPS position for
180 days. Id. at 7-8. OSC agreed not to reinstitute this Hatch Act c omplaint
absent a material breach of the terms of the settlement agreement. Id. at 8. The
parties requested that the administrative law judge approve the agreement, order
USPS to suspend the respondent without pay for 180 days, enter the agreement
into t he record so that the Board will retain jurisdiction to ensure compliance with
the agreement, and dismiss the complaint with prejudice as settled. Id. at 5-6.
¶4 The administrative law judge raised concerns with the parties about the
validity of the agreement because the respondent had bee n elected to and
continued to hold the state office . CF, Tab 5 . The administrative law judge
ordered the parties to file written submissions addressing whether the Hatch Act
3
and Board precedent permit a settlement agreement allow ing a respondent to
maint ain both a Federal and state -elected position , “which generated a Hatch Act
complaint before the Board.” Id. at 3. The administrative law judge further
ordered that, if the parties maintained that such a settlement is permitted, then
they must modify the proposed settlement agreement to include language
specifying whether the respon dent may retain both positions. Id.
¶5 OSC responded that the Hatch Act permits a settlement agreement allowing
a respondent to maintain his Federal position and an elected office that was won
in violat ion of the Hatch Act.1 CF, Tab 6. OSC explained that the Hatch Act
does not prohibit a Federal employee from holding an elect ed office but rather
prohibits a Federal employee from running for the nomination or as a candidate
for the election to a partisan political office. Id. at 4 -5 (citing 5 U.S.C.
§ 7323(a)(3); 39 U.S.C. § 410(b)(1)). OSC argued that Boar d precedent did not
require a Federal employee to vacate an elected office as a condition of a
settlement agreement and that, to the extent language in prior Board decisions
may have suggested otherwise, such language was not controlling after the Hatch
Act Modernization Act of 2012 (Modernization Act ), Pub. L. No. 112 -230,
126 Stat. 1616 (2012) , which increased the Board’s discretion in imposing
appropriate penalties for Hatch Act violations . CF, Tab 6 at 5-6. OSC asserted
that the 180 -day suspension is a substantial penalty within the range of
permissible penalties under the Modernization Act . Id. at 7. OSC submitted a
Modified Sett lement Agreement , executed by OSC and counsel for the
respondent, which included provisions that , “because the Hatch Act does not
prohibit [the respondent] from holding the elective County Commissioner office,
[OSC] will not pursue additional disciplinary action against him for continuing to
hold the office ” and that, “should [the respondent] again become a candidate for
1 The respondent did not file any separate response .
4
partisan political office while employed in a Hatch Act -covered positio n, such
action would constitute an additional violation of the Hatc h Act for which OSC
would pursue disciplinary action against him.” Id. at 10 -11.
¶6 The administrative law judge found that the Modified Settlement A greement
is inconsistent with the Ha tch Act and Board precedent indicating t hat holding an
elected office i s an aggravating factor in determining the penalty for a Hatch Act
violation. CF, Tab 7 at 2, 4-7 (citing Special Counsel v. Bradford , 62 M.S.P .R.
239 (1994), as modified on recons. , 69 M.S.P.R. 247 (1995)). The administrative
law judge further found that the Modernization Act does not support allowing a n
individual who knowingly violates the Hatch Act to retain both his Federal
employment and e lected position obtained by the violation. Id. at 7-11. The
administrative law judge disapproved the settlement agreement and certified his
ruling for interlocutory review by the Board. Id. at 11.
ANALYSIS
The administrative law judge properly certified an interlocutory appeal.
¶7 An interlocutory appeal is an appeal to the Board of a ruling made by a
judge during a Board proceeding. 5 C.F.R. § 1201.91 . The Board’s reg ulations
permit a judge, on his own motion, to certify an interlocutory appeal if the issue
presented is of such importance to the proceeding that it requires the Board’s
immediate attention. Id. The ruling must involve an important question of law or
policy about which there is substantial ground for difference of opinion . 5 C.F.R.
§ 1201.92 . Further, the circumstances must be such that either an immediate
ruling will materially advan ce the completion of the proceeding or the denial of
an immediate ruling will cause undue harm to a party or the public. Id. We find
these requirements are satisfied here. The Board has not addressed the issue
presented since the enactment of the Modernization Act , and an immediate ruling
avoid s the potential for the unnecessary expenditure of the parties’ and the
Board’s resources in litigating matters that, in the interest of justice and judicial
5
economy , can be appr opriately resolved on the exis ting record pursuant to the
parties’ settlement agreement.
The parties’ Modified Settlement Agreement is valid.
¶8 Under 5 U.S.C. § 7323 (a)(3), a Federal employee may not “run for the
nomination or as a candidate for election to a partisan political office.” It is not
the holding of the office that violates the Hatch Act but rather partisan candidacy
for that office. E.g., Special Counsel v. Bradford , 69 M.S.P.R. 247, 249 (1995) .
The prohibition against such a candidacy applies to USPS employees such as the
respondent. See 39 U.S.C. § 410(b)(1); Special Counsel v. Lewis , 121 M.S.P.R.
109, ¶ 2, aff’d, 594 F. App’x 974 (Fed. Cir. 2014).
¶9 OSC investigates allegations of such prohibited political activity and may
seek disciplinary action by filing a complaint with the Board. 5 U.S.C.
§§ 1215 (a)(1)(B), 1216 . If the Board finds the employee has engaged in
prohibited political activity, current law provides that the Board “may impose”
the following penalties : (1) “disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not to exceed 5 years,
suspension, or reprimand ”; (2) “an assessment of a civil penalty not to exceed
$1,000 ”; or (3) any combination of such discip linary actions and civil penalty.
5 U.S.C. § § 1215 (a)(3)(A) , 7326 .
¶10 The Board favors the use of settlements to avoid the unnecessary
expenditure of resources and litigation. Special Counsel v. Giles , 56 M.S.P.R.
465, 467 (1993). A settlement must be freely entered and lawful on its face
before the Board will give it a ny effect. See id. ; Special Counsel v. Reckard ,
69 M.S.P.R. 130, 132 (1995). There are additional consideration s when, as here,
the settled Board proceeding is based on a disciplinary action complaint brought
by OSC and the employing agency is not a party to the settlement agreement. See
Special Counsel v. Evans -Hamilton , 29 M.S.P.R. 516 , 517 n.1 (1984). In such a
situation , the Board must exercise its statutor y penalty authority to direct the
nonparty, employing agency to effect any agreed upon and approved discipline .
6
Id. The Board may reject a settlement of a disciplinary action complaint if it
provides for a penalty outside the scope of permissible pena lties for a Hatch Act
violation. Reckard , 69 M.S.P.R. at 132.
¶11 Here, the p arties have asked the Board to ac cept their settlement agreement
under which the respondent would be suspended from his USPS position without
pay for 180 days. A suspension is within the scope of permissible penalties the
Board may impose under current la w for a Hatch Act violation. 5 U.S.C.
§ 1215 (a)(3)(A). We find nothing in the statute that requires an employee to
relinquish the elected position before the Board may impose an authorized
penalty less than removal. See 5 U.S.C. §§ 1215 , 7323.
¶12 Prior to the enactment of the Modernization Act , the Board’s penalty
authority for Hatch Act violations was more restricted. Prior law requ ired that an
individual found to have violated the Hatch Act would be removed from h is
Federal position unless the Board found by unanim ous vote that the violation did
not warrant removal. Lewis , 121 M.S.P.R. 109 , ¶ 20. If that unanimous finding
was made, the Board could direct the Federal employing agency to impos e a
suspension of not less than 30 days. Id.; e.g., Special Counsel v. Zanjani ,
21 M.S.P.R . 67, 69 (1984). A respondent found to have violated the Hatch Act
bore the burden of pr esenting evidence showing that the presumptive penalty of
removal should not be imposed. Lewis , 121 M.S.P.R. 109 , ¶ 20.
¶13 Given these prior restrictions, the Board generally would not accept a
settlement of a Hatch Act complaint that would result in a penalty less than
removal of the Federal employee unless the record contained stipulations or
admissions as to the circumstances of the violation or to relevant mitigating or
aggravating factors. See Special Counsel v . Baker , 69 M.S.P.R. 36 , 39 (1995);
Zanjani , 21 M.S.P.R. at 69. In that context, the Board would, as in the Bradford
case cited by the administrative law judge , take into account an employee’s
refusal to relinquish his elected position as an aggravating fact or in determining
the appropriate penalty for a Hatch Act violation. Bradford , 69 M.S.P.R. at 250.
7
Conversely, an employee’s decision to forgo the elected position could be
considered a mitigating factor. See Special Counsel v. DeW itt, 113 M.S.P.R. 458 ,
¶¶ 3, 6-7 (2010); Special Counsel v. Pierce , 85 M.S.P.R. 281 , ¶¶ 2-5 (2000) . To
the extent, however, that such pre-Modernization Act cases could be read as
imposing a requirement that a Federal employee relinquish an elected office as a
cond ition of accepting a settlement providing for the suspension, rather than
removal, of the employee from Federal service, we find that such a requirement
would not apply under current law.
¶14 Under current law, removal is no longer the presumptive penalty for a
Hatch Act violation, and a unanimous vote of the Board is no longer required to
impose a penalty of less than r emoval . Lewis , 121 M.S.P.R. 109, ¶¶ 20-21.
Further, the range of appropriate penalties has been expanded to encompass a
broader array of less er disciplinary actions, identical to the range of penalties
available when OSC brin gs a complaint for disciplinary action based on a
prohibited personn el practice . 5 U.S.C. § 1215 (a)(3)(A); Lewis , 121 M.S.P.R.
109, ¶ 21; see S. Rep. No. 112 -211, as reprinted in 2012 U.S.C.A.A.N. 750,
754-55. When adjudicating a complaint u nder th e Modernization Act , the Board
will apply the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R.
280, 305 -06 (1981), in determining the proper penalty for a Federal employee’s
violation of the Hatch Act. Lewis , 121 M.S.P.R. 109 , ¶ 23.
¶15 We find, however, that a Douglas factors analysis is not required under the
Modernization Act before the Board may accept and approve a settlement
agreement that would result in a disciplinary action short of removal for a
violation of 5 U.S.C. § 7323 . The Board has not required such an analysis before
accepting settlements in another analogous situation within its original
jurisdiction: disciplinary actions against administrative law judges. By statute,
certain disciplinary actions against administrative law judges may be taken “only
for good cause established and determined by the [Board ] on the record after
opportunity for hearing. ” 5 U.S.C. § 7521 . In such matters, the choice of penalty
8
is for the Board, which will look to the relevant Douglas factors as guidance in
making its decision. E.g., Social Security Administration v. Steverson ,
111 M.S.P.R. 649 , ¶ 18 (2009), aff’d , 383 F. App’x 939 (Fed. Cir. 2010). The
Board has relied on stipulations in a settlement agree ment to find good cause for
disciplining an administrative law judge and has authorized agreed -upon penalties
that are lawful on their face without engaging in an independent analysis of the
Douglas factors. See Social Security Administration v. Liebling , 71 M.S.P.R.
465, 466 -67 (1996); Social Security Administration , Department of Health &
Human Services v. Givens , 27 M.S.P.R. 360 , 361 -62 & n.2 (1985).
¶16 We find that the Modified Settlement Agreement has been free ly entered
into by the parties and is lawful on its face. The parties’ stipulations are
sufficient to establish that the respondent violated the Hatch Act, 5 U.S.C.
§ 7323 (a)(3), and the discipline to which the respondent has agreed (a 180 -day
suspension without pay), is within the range of statutorily authorized penalties for
such a violation , see 5 U.S.C. §§ 1215 (a)(3)(A), 7326 . We find no basis for
concluding t hat settlement of the complaint on the agreed terms would be against
the interest of justice or prejudicial to the respondent or any other interested
party.
ORDER
¶17 Accordingly, we APPROVE the parties’ Modified S ettlement Agreement,
ENTER it into the reco rd for enforcement purposes, and DISMISS this matter
with prejudice as settled.
¶18 We ORDER the USPS to suspend the respondent without pay for 180 days.
We ORDER the Office of Special Counsel to notify the Board within 30 days of
this Opinion and Order wheth er the respondent has been suspended as ordered.
This is the final decision of the Merit Systems Protection Board in this matter.
5 C.F.R. § 1201.126 .
9
NOTICE TO THE PARTIE S
OF THEIR ENFORCEMENT RIGHTS
If the petitioner or the respondent has not fully carried out the terms of the
agreement, either part y may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the Office of the Clerk of th e
Board. The petition should contain specific reasons why the petitioning party
believes that the terms of the settlement agreement have not been fully carried
out, and should include the dates and results of any communications between the
parties. 5 C.F.R. § 1201.182 ; see 5 C.F.R. § 1201.121 (b)(2) .
NOTICE OF APPEAL RIGHTS
You may obtain review of this final decision . 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
11
you do, t hen you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
12
(3) Judicial review pursua nt to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a pro hibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Cir cuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washing ton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the 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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | COWAN_RODNEY_CB_1216_16_0018_T_1_OPINION_AND_ORDER_1911389.pdf | 2022-03-29 | null | CB-1216-16-0018-T-1 | P |
45 | https://www.mspb.gov/decisions/precedential/BRYANT_TAHUANA_SF_315H_17_0558_I_1_OPINION_AND_ORDER_1910305.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
2022 MSPB 1
Docket No. SF-315H -17-0558 -I-1
Tahuana Bryant,
Appellant,
v.
Department of the Army,
Agency.
March 24, 2022
Tahuana Bryant , Pearl City, Hawaii, pro se.
Teresa M. Garcia , Fort Shafter, Hawaii, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s termination for lack of due process. For the reasons
discussed below, we GRANT the agency’s petition for review, VACATE the
initial decision, and DISMISS the appeal for lack of jurisdiction.
BACKGROUND
¶2 The agency appointed the appellant to the position of Nurse effective
June 13, 2016. Initial Appeal File (IAF), Tab 4 at 41. The original Standard
Form 50 (SF -50) documenting this appointment indicated that it was subject to a
1-year probation ary period. Id. Several months later, the agency issued another
2
SF-50, correcting the earlier one to instead indicate that the appointment was
subject to a 2 -year probationary period. Id. at 40.
¶3 In a letter dated June 9, 2017, the agency explained tha t it was terminating
the appellant during her probationary period for failing to meet conditions of her
employment and delay in carrying out instructions. Id. at 13 -14. However, the
agency did not effectuate her termination until July 10, 2017, more than 1 year,
but less than 2 years , after her initial appointment. Id. at 12.
¶4 The appellant filed the instant appeal, suggesting that her termination was
improper because she was on leave for medical reasons during much of the
relevant period. IAF, Tab 1 at 5. The administrative judge issued an
acknowledgment order, instructing both parties to address whether the Board ha s
jurisdiction over the instant appeal. IAF, Tab 2. In response, the agency argued
that the termination was outside the Board’s jurisdiction. IAF, Tabs 4 -6. The
appellant did not respond . Subsequently, the administrative judge issued an
initial decision that reversed the agency’s action. IAF, Tab 7, Initial Decision
(ID). She found that the appellant met the definition of an “employee” with
Board appeal rights under chapter 75 because she had completed 1 year of current
continuous service under other than a temporary appointment limited to 1 year or
less. ID at 3. The administrative judge f urther found that the agency did not
provide the appellant with an opportunity to respond to her termination letter, and
thus deprived her of due process . ID at 4.
¶5 The agency has filed a petition for review, reasserting that the Board lacks
jurisdiction over the appellant’s termination. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response. PFR File, Tab 4. She also has filed
what she titles as a petition for enforcement, questioning whether the agency
provided full interim relief. PFR File, Tab 3.
3
ANALYSIS
The agency has submitted sufficient evidence of compliance with the interim
relief order .
¶6 The appellant’ s petition for enforcem ent is denied because the Board’ s
regulations do not allow for a petition for enforcement of an inter im relief order .
Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016) ; see 5 C.F.R.
§ 1201.182 (a)-(b) (providing for petitions for enforcement of final Board orders) .
We instead consider the appellant’ s pleadin g as a challenge to the agency’s
certification of co mpliance. Elder , 124 M.S.P.R. 12 , ¶ 20; 5 C.F.R.
§ 1201 .116 (b). Therein, the appellant asserts that the agency should pay her back
pay from the effective date of her termination. PFR File, Tab 3 at 4. However,
she is mistaken.
¶7 When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered , a petition for review filed by the agency must be
accompanied by a certification that the agency has complied with the interim
relief order . Elder , 124 M.S.P.R. 12 , ¶ 18. When a petition for review is filed, an
agency is required to pay back pay and associated benefits from the date on which
the initial decision was issued . 5 U.S.C. § 7701 (b)(2)(A); Sanders v. Department
of Homeland Security , 122 M.S.P.R. 144 , ¶ 8, aff’d per curiam , 625 F. App’x 549
(Fed. Cir. 2015). Here, the agency certified that it instructed the appellant to
return to work effective October 20, 2017, the dat e of the initial decision. PFR
File, Tab 1 at 10-15. With its petition for review, the agency filed the email in
which it instructed the appellant to return to duty, and a Standard Form 52
reflecting her reinstatement effective October 20, 2017. Id. at 12 -15. The Board
previously has found such evidence sufficient to establish compliance with an
interim relief order. Caryl v. Department of Treasury , 53 M.S.P.R. 202 , 206
(1992). Additionally, w ith her petition for enforcement, the appellant provided
evidence that the agency was processing her back pay and benefits between
Octob er 20 and November 27, 2017, the date the agency instructed her to report
4
to duty. PFR File, Tab 1 at 15, Tab 3 at 4, 11, 13 -17. Because there is no dispute
that the agency was in the process of providing the appellant with this relief at the
time it filed its petition for review, we deny the appellant’s request for additional
back pay and benefits , and consider the agency’s petition for review.1
The appellant was terminated during her 2 -year probationary period.
¶8 The definition of an employee with adverse action appeal rights to the
Board under chapter 75 is found at 5 U.S.C. § 7511 (a)(1). Calixto v. Department
of Defense , 120 M.S.P.R. 557 , ¶ 7 (2014). That section provide s that an
individual appo inted to a competitive -service position is an employee with appeal
rights if she “is not serving a probationary or trial period under an initial
appointment,” or “has completed 1 year of current continu ous service under other
than a temporary appointment limited to 1 year or less.” Id. On November 25,
2015, President Obama signed into law the National Defense Authorization Act
for Fiscal Year 2016 (2016 NDAA), Pub. L. No. 114 -92, 129 Stat. 726 (2015) .
The 2016 NDAA added an exception to the definition of employee. Pub. L.
No. 114-92, § 1105, 129 Stat. 726, 1023 -24 (codified as relevant here at
10 U.S.C. § 1599e (2016) and 5 U.S.C. § 7511 (a)(1)(A)(ii) (2016) ). The amended
statute de fined a competitive -service “employee” for purposes of chapter 75
appeal rights as follows:
(A) an individual in the competitive service —
(i) who is not serving a probationary or trial period under an
initial appointment; or
(ii) except as provided in section 1599e of title 10 , who has
completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less [.]
5 U.S.C. § 7511 (a)(1)(A)(i) -(ii) (emphasis added).
1 Neither party has indicated whether the appellant did, in fact, return to duty on
November 27, 2017.
5
Section 1599e provide d, inter alia, that individuals appoi nted to a permanent
competitive -service position at the Department of Defense (DOD) were subject to
a 2‑year probationary period and only qualif ied as an “employee” under 5 U.S.C.
§ 7511 (a)(1)(A)(ii) (2016) if they completed 2 years of current continuous
service .2 10 U.S.C. § 1599e (a), (b)(1)(A), (d) (2016) . On December 27, 2021,
President Biden signed into law the National Defense Authorization Act for
Fiscal Year 2022 (2022 NDAA) , Pub. L. No. 117 -81, 135 Stat. 1541 . The 2022
NDAA repealed the 2 -year probationary period for DOD appointments made on
or after December 31, 2022. Pub. L. No. 117 -81, § 1106, 135 Stat. 1541, 1950 .
¶9 As the agency correctly argues on review, the administrative judge failed to
recognize 10 U.S.C. § 1599e and the aforementioned amendment to 5 U.S.C.
§ 7511 (a)(1)(A)(ii) (2016) , instead relying on the latter as it previously was
written. PFR File, Tab 1 at 7 -8; ID at 3. Taking those statutes into account, it is
evident that the appellant was not an “employee” with chapter 75 appeal rights.
Because the appellant was appointed on June 13, 2016, before the effective date
that the 2016 NDAA was repealed, she was subject to a 2 -year probationary
period. IAF, Tab 4 at 41. She had not yet completed a 2 -year probationary
period or 2 years of current contin uous service in her competitive -service position
2 For purposes of 10 U.S.C. § 1599e , the “Department of Defense” included the
Department of th e Army. See 10 U.S.C. § 101 (a)(6) (defining DOD for title 10 as
including “the executive part of the department, including the executive parts of the
military departments, and all field headquarte rs, forces, reserve components,
installations, activities, and functions under the control or supervision of the Secretary
of Defense, including those of the military departments”), (8) (defining the military
departments as including the Departments of the Army, Navy, and Air Force). Because
the term being defined here is “Department of Defense” under title 10, this situation is
distinguishable from those in which the Board has found that a military department is a
separate “agency” from DOD for purposes o f title 5. See, e.g. , Washburn v. Department
of the Air Force , 119 M.S.P.R. 265 , ¶¶ 5 -8 (2013) (explaining that the Department of
the Air Force and DOD are separate and independent agencies for purposes of the right
to compete provision of the Veterans Employment Opportunities Act of 1998).
6
when the agency terminated her employment. IAF, Tab 4 at 12 -14, 40 -41.
Therefore, her termination appeal is out side the Board’s jurisdiction.
¶10 The appellant does not present any argument concerning the effect of the
aforementioned statutes.3 Instead, she simply reasserts that she completed 1 year
of current continuous service before her removal, and that 1 year was all that was
required to satisfy her probationary period. PFR File, Tab 4 at 4. In doing so, the
appellant points to the vacancy announcement and the original SF-50 that
followed her appointment, each of which reflect ed that the position required only
a 1-year probationary period. IAF, Tab 4 at 41; PFR File, Tab 4 at 8.
Nevertheless, the statutes control the Board’s jurisdiction in this case, not the
agency’s misstatements. See Maddox v. Merit Systems Protection Board ,
759 F.2d 9 , 10 (Fed. Cir. 1985) (recognizing that the Board’s jurisdiction is
limited to those matters over which it has been given jurisdiction by law, rule, or
regulation); Grigsby v. Department of Commerce , 729 F.2d 772 , 776 (Fed. Cir.
1984) (finding that an “SF-50 is not a legally operative document controlling on
its face an employee ’s status and rights” ); see also Barrand v. Department of
Veterans Affairs , 112 M.S.P.R. 210 , ¶ 13 (2009) (ex plaining that an agency’s
erroneous notification of appeal rights cannot expand the Board’s limited
jurisdict ion); cf. Williams v. Merit Systems Protection Board , 892 F.3d 1156 ,
1162 -63 (Fed. Cir. 2018) (recognizing that an agency’s failure to advise an
employe e that he would lose his Board appeal rights if he voluntarily transferred
to a different position did not create appeal rights) . The cont rolling statutes
clearly establish that the threshold for the appellant to be come a permanent
competitive -service employee with chapter 75 appeal rights was 2 years. Absent
3 The appellant also states no basis for invoking the Board’s limited regulatory
jurisdiction over probationary terminations, despite being informed of the same. IAF,
Tab 2 at 2 -3; see 5 C.F.R. § 315.806 (providing for Board jurisdiction over claims that a
competitive -service pr obationary appointee’s termination was for certain prohibited
reasons).
7
jurisdiction over the appellant’s termination, we cannot review whether the
agency denied her due process. See Smith v. Department of Defense ,
106 M.S.P.R. 228 , ¶ 13 (2007) (explaining that the Board has no jurisdiction to
review constitutional claims that are not coupled with independently appealable
actions). We therefore must vacate the initial decision and dismiss the appeal for
lack of jurisdiction.
ORDER
¶11 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.1 13).
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 summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t 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:
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 cour t of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510 .
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C. | BRYANT_TAHUANA_SF_315H_17_0558_I_1_OPINION_AND_ORDER_1910305.pdf | 2022-03-24 | Tahuana Bryant v. Department of the Army, 2022 MSPB 1 | SF-315H-17-0558-I-1 | P |
0 | https://www.mspb.gov/decisions/nonprecedential/Baseden_Steven_T_SF-1221-24-0612-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN T. BASEDEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-24-0612-W-1
DATE: April 10, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven T. Baseden , Juneau, Alaska, pro se.
Leah S. Serrano , Washington, D.C., for the agency.
Matthew Prieksat , Joint Base Elmendorf-Richardson, Alaska,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before April 9, 2025.
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. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that the administrative judge erred in
concluding that “[he] failed to nonfrivolously allege facts that, if proved, would
show that he made a protected disclosure.” Petition for Review File, Tab 1 at 3.
He asserts that “[he] reasonably believed and disclosed that [his coworker’s]
uninformed health and safety enforcement actions posed a risk to public health
and safety.” Id. at 4. For the reasons outlined in the initial decision, we agree
with the administrative judge that the appellant’s disclosure that his coworker’s
opinion contradicted the guidance of the Federal Emergency Management Agency
for COVID protocols did not evidence wrongdoing covered under 5 U.S.C.
§ 2302(b)(8). Initial Appeal File, Tab 7, Initial Decision at 9-11. The appellant’s
mere disagreement with the administrative judge’s findings does not warrant
further review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997)
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
Accordingly, we affirm the initial decision.2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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 | Baseden_Steven_T_SF-1221-24-0612-W-1__Final_Order.pdf | 2025-04-10 | STEVEN T. BASEDEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-24-0612-W-1, April 10, 2025 | SF-1221-24-0612-W-1 | NP |
1 | https://www.mspb.gov/decisions/nonprecedential/Sutton_PaulaCB-7121-24-0003-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA SUTTON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CB-7121-24-0003-V-1
DATE: April 9, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sameera Mangena , Oakland, California, for the appellant.
William Igoe , Chicago, Illinois, for the appellant.
Eli Kirschner , Joey Ann Lonjers , and Jonathan Brent , Long Beach,
California, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before April 9, 2025.
FINAL ORDER
Pursuant to the Board’s instructions in this arbitration review matter, the
administrative judge issued a February 13, 2025 Initial Decision in which she
dismissed the appeal as settled. Sutton v. Department of Homeland Security ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
MSPB Docket No. CB-7121-24-0003-H-1, Referral Proceeding File (RPF),
Tab 10, Initial Decision. The case was forwarded back to the Board and neither
party has filed exceptions to the administrative judge’s decision. For the reasons
set forth below, we MODIFY the Initial Decision to clarify that it is a
recommended decision and ADOPT the administrative judge’s recommendation
to dismiss the appeal as settled.
The administrative judge erred in issuing an initial decision instead of a
recommended decision. Pursuant to the Board’s authority in 5 C.F.R.
§ 1201.155(e), we forwarded this matter to the Board’s Western Regional Office
for an administrative judge to make recommended findings on the appellant’s
claim of reprisal for the Rehabilitation Act protected activities of requesting
reasonable accommodations and filing equal employment opportunity complaints
opposing disability discrimination. See Brookens v. Department of Labor ,
120 M.S.P.R. 678, ¶ 15 (2014) (forwarding the appellant’s claims of
discrimination and retaliation to the regional office for further adjudication and
for the administrative judge to make recommended findings); Sutton v.
Department of Homeland Security , MSPB Docket No. CB-7121-24-0003-V-1,
Order, ¶¶ 35-37 (Nov. 25, 2024). Thus, we modify the Initial Decision to clarify
that it is a recommended decision but nevertheless adopt the administrative
judge’s recommendation to dismiss the appeal as settled.
During the referral proceeding below, the parties submitted a document
entitled “SETTLEMENT AGREEMENT,” signed by the parties on February 12,
2025. The document provides, among other things, for the withdrawal of the
appeal.
Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record2
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforcement by the Board. RPF, Tab 8. Accordingly, we find that dismissing
the appeal with prejudice to refiling (i.e., the parties normally may not refile this
appeal) is appropriate under these circumstances. In addition, we find that the
agreement is lawful on its face and freely entered into, and we accept the
settlement agreement into the record for enforcement purposes.
This is the final decision of the Merit Systems Protection Board on the
appellant’s request for arbitration review. Title 5 of the Code of Federal
Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Sutton_PaulaCB-7121-24-0003-V-1_Final_Order.pdf | 2025-04-09 | PAULA SUTTON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CB-7121-24-0003-V-1, April 9, 2025 | CB-7121-24-0003-V-1 | NP |
2 | https://www.mspb.gov/decisions/nonprecedential/Neal_JenniferAT-0714-20-0742-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER NEAL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0742-A-1
DATE: April 9, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil Curtis Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Joy Warner , Karla Brown Dolby , and Sophia Haynes , Esquire, Decatur,
Georgia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members completed the voting process before the Board lost its
quorum on April 9, 2025.
FINAL ORDER
The agency has filed a petition for review of the addendum initial decision,
which granted the appellant’s motion for attorney fees. For the reasons discussed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, we GRANT the agency’s petition for review, we REVERSE the addendum
initial decision, and we DENY the motion for attorney fees.
The agency removed the appellant for unacceptable performance in
August 2020, under the authority of 38 U.S.C. § 714. Neal v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-20-0742-I-1, Initial Appeal File
(IAF), Tab 6 at 17, 19-22. After the appellant filed an appeal to challenge the
action, an administrative judge reversed her removal. IAF, Tab 55, Initial
Decision (ID). In short, the administrative judge considered a related decision by
the Federal Labor Relations Authority (FLRA) finding that individuals, such as
the appellant, should have been afforded performance improvement periods prior
to a removal based on unacceptable performance, and thus the appellant’s
removal was not in accordance with law. ID at 2-6.
The agency filed a petition for review, challenging the initial decision.
Neal v. Department of Veterans Affairs , MSPB Docket No. AT-0714-20-0742-I-1,
Petition for Review (PFR) File, Tab 1. While that petition remained pending, the
Clerk of the Board issued multiple orders seeking information about whether this
appeal may have become moot due to some intervening events involving a series
of arbitration and FLRA decisions. PFR File, Tabs 16, 19, 23. During this time,
the agency determined that the appellant was entitled to relief, including the
retroactive cancellation of her removal, pursuant to an FLRA decision. PFR File,
Tab 18 at 4-5, 84-85, Tab 22 at 4, 7-11. Consequently, the agency cancelled the
removal, returned the appellant to duty, and altogether made her whole, after
which the Board issued a final order, dismissing the agency’s petition for review
as moot. Neal v. Department of Veterans Affairs , MSPB Docket No. AT-0714-
20-0742-I-1, Final Order (July 21, 2023); PFR File, Tab 29, Final Order.
Just after the Board’s decision, the appellant filed a motion for attorney
fees. Neal v. Department of Veterans Affairs , MSPB Docket No. AT-0714-20-
0742-A-1, Attorney Fee File (AFF), Tab 1. The agency responded, arguing that
the appellant was not the prevailing party because she did not obtain “any2
material alteration of the legal relationship between herself and the agency
through the [initial decision].” AFF, Tab 4 at 5-6. The agency also argued that
an award of attorney fees is not in the interest of justice. Id. at 6-7. The
administrative judge disagreed. She issued a decision granting the appellant’s
motion and ordering the agency to pay attorney fees and expenses totaling
$35,075.00. AFF, Tab 6, Addendum Initial Decision (AID).
The agency has filed a petition for review of the addendum initial decision.
Neal v. Department of Veterans Affairs , MSPB Docket No. AT-0714-20-0742-
A-1, Petition for Review (A-1 PFR), Tab 1. The appellant has filed a response.
A-1 PFR File, Tab 2.
To establish entitlement to an award of attorney fees under 5 U.S.C.
§ 7701(g)(1), an appellant must show that: (1) she was the prevailing party;
(2) she incurred attorney fees pursuant to an existing attorney-client relationship;
(3) an award of attorney fees is warranted in the interest of justice; and (4) the
amount of attorney fees claimed is reasonable. Morley v. Department of Veterans
Affairs, 2024 MSPB 17, ¶ 5. The agency’s petition for review focuses on the first
of these elements. A-1 PFR File, Tab 1 at 5-6.
Regarding this disputed prevailing party element, an appellant is
considered to have prevailed in a case and to be entitled to attorney fees only if
she obtains an “enforceable judgment” resulting in a “material alteration of the
legal relationship of the parties.” Morley, 2024 MSPB 17, ¶ 6 (referencing
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health
and Human Resources , 532 U.S. 598, 604 (2001)).2 A plaintiff “prevails” when
actual relief on the merits of her claim materially alters the legal relationship
2 In Morley, the Board quoted the term “enforceable order” rather than “enforceable
judgement” in a way that suggested the U.S. Supreme Court had used the former in its
Buckhannon decision. Morley, 2024 MSPB 17, ¶ 6. The Board did the same in
Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413, ¶ 11 (2010), which is
cited in the Board’s Morley decision. But the Supreme Court’s Buckhannon decision
used the term “enforceable judgment,” so we have done so in the instant decision as
well. Buckhannon, 532 U.S. at 604.3
between the parties by modifying the defendant’s behavior in a way that directly
benefits the plaintiff. Id. An appellant is, or is not, a prevailing party in the case
as a whole, and whether she may be deemed a prevailing party depends on the
relief ordered in the Board’s final decision. Id.
While analyzing analogous attorney fees provisions of the Fair Housing
Amendments Act of 1988 and the Americans with Disabilities Act of 1990, the
Court interpreted the “prevailing party” standard as providing for an award of
fees only when a party has been awarded some relief by the court. Buckhannon,
532 U.S. at 601, 604. The Court stated, “[E]nforceable judgments on the merits
and court-ordered consent decrees create the material alteration of the legal
relationship of the parties’ necessary to permit an award of attorney fees.” Id.
(quoting Texas State Teachers Association v. Garland Independent School
District, 489 U.S. 782, 792-93 (1989)). The Court specifically rejected the
“catalyst theory,” whereby a party could be found to have prevailed based on the
opposing party’s voluntary change of conduct after the filing of a lawsuit, as a
viable basis to award attorney fees. Buckhannon, 532 U.S. at 605.
To further illustrate, the Board applied Buckhannon to find that an
appellant could not qualify as a “prevailing party” for the purposes of an award of
attorney fees where the Office of Personnel Management reversed its earlier
decision to deny an individual’s disability retirement application after he filed his
appeal, and the administrative judge dismissed the appeal as moot without issuing
a decision on the merits. Mulero–Echevarria v. Office of Personnel Management ,
93 M.S.P.R. 154, ¶¶ 5-6 (2002). The Board similarly applied Buckhannon where
an agency unilaterally changed its position after the appellant filed a Board
appeal regarding an adverse action, resulting in the appeal’s dismissal as moot
with no consent decree, judgment, order, or settlement agreement by which the
Board could enforce any relief. Sacco v. Department of Justice , 90 M.S.P.R. 225,
¶¶ 2, 8 (2001), aff’d 317 F.3d 1384 (Fed. Cir. 2003).4
According to the agency, the appellant was not the prevailing party in the
instant appeal because she did not obtain “a lawful order from the Board that
materially altered the relationship between parties.” Id. at 5-6. The gist of this
argument relies on the unique sequence of events before us: The initial decision
on the merits would have reversed the appellant’s removal, but the agency filed a
petition for review, which prevented that initial decision from becoming final or
enforceable. Id. at 6. While that petition remained pending, the appellant was
precluded by law from receiving interim relief, so the relationship between the
parties was not yet materially altered. Id.; see Schmitt v. Department of Veterans
Affairs, 2022 MSPB 40, ¶ 16 (recognizing that an award of interim relief while an
appeal is pending with the Board is precluded in actions taken under 38 U.S.C.
§ 714). Then, the agency retroactively cancelled the removal action pursuant to
the FLRA’s decisions, rather than any Board decision. A-1 PFR File, Tab 1 at 6.
Given that intervening event, the Board dismissed the agency’s petition as moot,
since the appellant had already obtained all relief available to her via the
agency’s compliance with the FLRA decisions. Id. at 6-7.
Put more simply, the agency’s argument on review is that the appellant is
not entitled to attorney fees because she was not a prevailing party in this Board
appeal—it was the FLRA, rather than the Board, that materially altered the
relationship between the appellant and the agency. Id. Relatedly, the agency
asserts that it already paid attorney fees to the appellant’s union for purposes of
the FLRA’s decisions, so an award of attorney fees in this Board case would be
duplicative. Id. at 7.
In the addendum initial decision, the administrative judge was not
persuaded by these arguments. The administrative judge concluded that the
appellant was the prevailing party because “she obtained a lawful order from the
Board that materially altered the legal relationship between parties.” AID at 4.
However, the prevailing party standard requires an “enforceable order,” rather
than the “lawful order” referenced by the administrative judge. And we agree5
with the agency’s implied point that there is a meaningful distinction between the
two.
While the appellant did receive an order that ruled in her favor, i.e., the
administrative judge’s initial decision on the merits of her removal, that order
was never enforceable. It was not enforceable while the agency’s petition for
review was pending, and it was not enforceable after the Board dismissed the
agency’s petition as moot. The Board’s dismissal of the petition for review also
fails to qualify as an enforceable order. It did not indicate that the initial decision
was the Board’s final and enforceable decision, and it did not order the agency to
take any action that was subject to enforcement.
We acknowledge that the agency’s rescission of the appellant’s removal
was hardly voluntary; it was the result of an FLRA decision. But for purposes of
5 U.S.C. § 7701(g)(1), the Board did not issue a final enforceable decision that
ordered any relief. Consequently, the appellant is not a prevailing party in the
instant appeal. We must, therefore, reverse the addendum initial decision and
deny the appellant’s motion for attorney fees.
NOTICE OF APPEAL RIGHTS3
This 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
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Neal_JenniferAT-0714-20-0742-A-1_Final_Order.pdf | 2025-04-09 | JENNIFER NEAL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-20-0742-A-1, April 9, 2025 | AT-0714-20-0742-A-1 | NP |
3 | https://www.mspb.gov/decisions/nonprecedential/House_Brent_E_DA-0752-24-0238-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENT EUGENE HOUSE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DA-0752-24-0238-I-1
DATE: April 9, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brent Eugene House , Pilot Point, Texas, pro se.
Roderick Eves , Saint Louis, Missouri, for the agency.
Ayana Bowman , Landover, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before April 9, 2025.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
argues that the Board has jurisdiction over his appeal because he is a
preference-eligible veteran. Generally, we grant petitions such as this one only in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 | House_Brent_E_DA-0752-24-0238-I-1_Final_Order.pdf | 2025-04-09 | BRENT EUGENE HOUSE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-24-0238-I-1, April 9, 2025 | DA-0752-24-0238-I-1 | NP |
4 | https://www.mspb.gov/decisions/nonprecedential/Nasio_Simon_A_PH-3330-24-0133-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SIMON AMUNGA NASIO SR.,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
PH-3330-24-0133-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Simon Amunga Nasio Sr. , Charles Town, West Virginia, pro se.
Larry Pruitt , Joint Base Andrews, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction because he did not present any basis
for jurisdiction regarding his Uniformed Services Employment and
Reemployment Rights Act (USERRA), Veterans Employment Opportunity Act
(VEOA), and discrimination claims. On petition for review, the appellant argues
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that the administrative judge incorrectly applied USERRA and VEOA and that the
appellant was discriminated against based on his immigration status and national
origin. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Nasio_Simon_A_PH-3330-24-0133-I-1__Final_Order.pdf | 2025-04-08 | SIMON AMUNGA NASIO SR. v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. PH-3330-24-0133-I-1, April 8, 2025 | PH-3330-24-0133-I-1 | NP |
5 | https://www.mspb.gov/decisions/nonprecedential/Nwala_Chima_A_AT-3330-24-0398-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHIMA AKAGBUE NWALA,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-3330-24-0398-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chima Akagbue Nwala , Riverview, Florida, pro se.
Brandon M. Jenkins , Joint Base Andrews, Maryland, for the agency.
Major Holly L. Buchanan and Major William Vincent Cochrane, Jr. ,
Eglin Air Force Base, Florida, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action under the Veterans
Employment Opportunities Act of 1998. On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
argues that the agency’s use of the direct hiring authority enumerated at 5 U.S.C.
§ 9905 violated his veterans’ preference rights, the agency did not properly
invoke the direct hiring process, and the agency examined the applicants in a
manner suggesting a competitive process, which should have triggered his
veterans’ preference rights. Generally, we grant petitions such as 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. 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 | Nwala_Chima_A_AT-3330-24-0398-I-1__Final Order.pdf | 2025-04-08 | CHIMA AKAGBUE NWALA v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-3330-24-0398-I-1, April 8, 2025 | AT-3330-24-0398-I-1 | NP |
6 | https://www.mspb.gov/decisions/nonprecedential/Moore_Cynthia_T_PH-1221-21-0276-W-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA TAYLOR MOORE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-21-0276-W-2
DATE: April 8, 2025
Amanda L. E. Smith , Esquire, Buffalo, New York, for the appellant.
Melissa Mack , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Member
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
whistleblower reprisal appeal. Vice Chairman Kerner has recused himself from
consideration of this case. Because there is no quorum to alter the administrative
judge’s initial decision, the initial decision now becomes the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Moore_Cynthia_T_PH-1221-21-0276-W-2__Final_Order.pdf | 2025-04-08 | CYNTHIA TAYLOR MOORE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-21-0276-W-2, April 8, 2025 | PH-1221-21-0276-W-2 | NP |
7 | https://www.mspb.gov/decisions/nonprecedential/Mitrano_Peter_P_DC-3443-24-0411-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PETER P. MITRANO,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3443-24-0411-I-1
DATE: April 8, 2025
Peter P. Mitrano , Fairfax, Virginia, pro se.
Diane Tardiff , Bedford, Massachusetts, for the agency.
Jane Yoon , Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal contesting a letter of reprimand for lack of jurisdiction.
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Mitrano_Peter_P_DC-3443-24-0411-I-1__Final Order.pdf | 2025-04-08 | PETER P. MITRANO v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3443-24-0411-I-1, April 8, 2025 | DC-3443-24-0411-I-1 | NP |
8 | https://www.mspb.gov/decisions/nonprecedential/Jacobs_Gail_T_DC-0841-24-0216-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GAIL TURNER JACOBS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0841-24-0216-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gail Turner Jacobs , Chevy Chase, Maryland, pro se.
Eva Ukkola , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her challenge of the calculation of the Office of Personnel Management
(OPM) of her Federal Employees Retirement System annuity for lack of Board
jurisdiction. On petition for review, the appellant argues that OPM refused to
issue a final or reconsideration decision and that the administrative judge erred by
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
“not closing the record without prejudice.” Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 | Jacobs_Gail_T_DC-0841-24-0216-I-1__Final Order.pdf | 2025-04-08 | GAIL TURNER JACOBS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0841-24-0216-I-1, April 8, 2025 | DC-0841-24-0216-I-1 | NP |
9 | https://www.mspb.gov/decisions/nonprecedential/Madden_GustaveousAT-0752-23-0668-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GUSTAVEOUS MADDEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-23-0668-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Margaret House and Mary Elizabeth Kuntz , Washington, D.C.,
for the appellant.
Victoria Coleman and Darryl Anthony Joe , Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
dismissed the appellant’s constructive removal appeal for lack of jurisdiction. On
petition for review, the agency argues that the appeal was untimely filed.2
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2 The appellant has not provided a basis for disturbing the administrative judge’s
finding that the Board lacks jurisdiction over the appeal. Thus, we need not reach the
issue of timeliness. See Dean v. U.S. Postal Service , 115 M.S.P.R. 56, ¶ 13 n.5 (2010)
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 initial
decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
(finding that, because the appellant had failed to prove jurisdiction, the Board need not
reach the issue of timeliness).
3 Because the appellant raised a claim of discrimination in this constructive adverse
action appeal, and the Board has now issued a final order dismissing the appeal for lack
of jurisdiction, the agency is required, under Equal Employment Opportunity
Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)
giving the appellant the right to elect between a hearing before an EEOC administrative
judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).
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.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.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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 | Madden_GustaveousAT-0752-23-0668-I-1__Final Order.pdf | 2025-04-08 | GUSTAVEOUS MADDEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0668-I-1, April 8, 2025 | AT-0752-23-0668-I-1 | NP |
10 | https://www.mspb.gov/decisions/nonprecedential/Ivory_Tamikia_A_NY-0752-24-0047-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMIKIA ANN IVORY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0752-24-0047-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tamikia Ann Ivory , Wyandanch, New York, pro se.
Barbara Burke , Brooklyn, New York, for the agency.
Diane Tardiff , Bedford, Massachusetts, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to prosecute. On petition for review, the
appellant argues that she was unable to respond to the administrative judge’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
orders or appear at the status conference because she experienced various health
issues, including being bedridden and having surgery.2 Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant’s assertions on review lack detail, including the dates involved, are not
supported by medical documentation, and are not made under oath or penalty of perjury.
Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued an order
notifying this pro se appellant of these deficiencies and affording her an opportunity to
supplement her petition with additional evidence and argument. PFR File, Tab 3. The
appellant did not respond to the order.
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
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Ivory_Tamikia_A_NY-0752-24-0047-I-1__Final_Order.pdf | 2025-04-08 | TAMIKIA ANN IVORY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0752-24-0047-I-1, April 8, 2025 | NY-0752-24-0047-I-1 | NP |
11 | https://www.mspb.gov/decisions/nonprecedential/Ferro_Laurie_M_NY-315H-24-0192-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURIE MARIE FERRO,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-315H-24-0192-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laurie Marie Ferro , Cheektowaga, New York, pro se.
Joseph Blanton , Esquire, and Alexander Glossman , Esquire, New York,
New York, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues the merits of her termination and the
failure of the agency to give her an opportunity to improve her performance.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
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 | Ferro_Laurie_M_NY-315H-24-0192-I-1_Final_Order.pdf | 2025-04-08 | LAURIE MARIE FERRO v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-315H-24-0192-I-1, April 8, 2025 | NY-315H-24-0192-I-1 | NP |
12 | https://www.mspb.gov/decisions/nonprecedential/Jackson-Darden_CherylDC-3443-24-0272-I-1__3353020.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHERYL JACKSON-DARDEN,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-3443-24-0272-I-1
DATE: April 8, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheryl Jackson-Darden , North Chesterfield, Virginia, pro se.
George E. Wise , Esquire, Fort Meade, Maryland, for the agency.
Allen Brooks , Quantico, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her nonselection claim for lack of Board jurisdiction. On petition for
review, the appellant argues that the Board has jurisdiction under the Civil
Service Reform Act, 5 U.S.C. § 2302, and 5 C.F.R. § 300.103. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
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 | Jackson-Darden_CherylDC-3443-24-0272-I-1__3353020.pdf | 2025-04-08 | null | DC-3443-24-0272-I-1 | NP |
13 | https://www.mspb.gov/decisions/nonprecedential/Walker_Debbie_AT-1221-23-0454-W-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBBIE WALKER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-1221-23-0454-W-1
DATE: April 7, 2025
James R. Walker , Byron, Georgia, for the appellant.
Ryan Devine , Esquire, and Timothy Jones , Esquire, Fort Gregg Adams,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal on the grounds of adjudicatory
efficiency. Vice Chairman Kerner has recused himself from consideration of this
case. Because there is no quorum to alter the administrative judge’s initial
decision, the initial decision now becomes the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Walker_Debbie_AT-1221-23-0454-W-1__Order.pdf | 2025-04-07 | DEBBIE WALKER v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-1221-23-0454-W-1, April 7, 2025 | AT-1221-23-0454-W-1 | NP |
14 | https://www.mspb.gov/decisions/nonprecedential/Williams_Charles_L_CH-0831-23-0390-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES L. WILLIAMS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-23-0390-I-1
DATE: March 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles L. Williams , East Saint Louis, Illinois, pro se.
Eva Ukkola and Jo A. Bell , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal without prejudice to refiling. For the reasons set forth
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
below, we DENY the petition for review; however, we FORWARD the matter to
the Central Regional Office for further adjudication .
The appellant largely argues the merits of his appeal. Petition for Review
(PFR) File, Tabs 1, 3. The only matter presently before the Board, however, is
whether the dismissal without prejudice was proper.2 See Gingery v. Department
of the Treasury, 111 M.S.P.R. 134, ¶ 11 (2009). The remedy for an improperly
granted dismissal without prejudice is remand to the regional office for further
adjudication of the appeal. See, e.g., Dey v. Nuclear Regulatory Commission ,
106 M.S.P.R. 167, ¶¶ 9-11 (2007). Here, the initial decision indicated that the
appeal would automatically be refiled by the Board on December 9, 2024. Initial
Appeal File, Tab 34, Initial Decision at 3. Regardless of whether the
administrative judge abused her discretion, December 9, 2024, has now passed.
Thus, because a condition for refiling has been met, we decline to reach the issue
of whether the administrative judge abused her discretion in dismissing the appeal
without prejudice. See Burke v. Department of Veterans Affairs , 94 M.S.P.R. 1,
¶ 5 (2003). We therefore deny the petition for review; however, we forward the
matter to the Central Regional Office to be considered as a refiled appeal. See
Henry v. Department of Veterans Affairs , 110 M.S.P.R. 213, ¶ 6 (2008). The
initial decision 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
2 On February 24, 2025, the appellant filed a “Motion for Leave to File Additional
Pleading.” PFR File, Tab 7. In his motion, he discusses issues related to the merits of
his appeal challenging OPM’s calculation of his former spouse’s portion of his annuity
and the resulting underpayment owed to him. Id. We deny the appellant’s motion, as
the additional pleading, and his arguments contained therein, are not material to the
issue of whether the administrative judge’s dismissal without prejudice was proper.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Williams_Charles_L_CH-0831-23-0390-I-1_Final_Order.pdf | 2025-03-31 | CHARLES L. WILLIAMS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-23-0390-I-1, March 31, 2025 | CH-0831-23-0390-I-1 | NP |
15 | https://www.mspb.gov/decisions/nonprecedential/Shuttleworth_SamuelDC-0842-22-0412-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL SHUTTLEWORTH,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0842-22-0412-I-1
DATE: March 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel Shuttleworth , Suffolk, Virginia, pro se.
Nicholas R. Hankey , Esquire, and Melissa Williams , Esquire,
Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s decision denying his request for retroactive law
enforcement officer (LEO) retirement coverage under the Federal Employees’
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 System (FERS) for his period of employment with the Federal
Protective Service (FPS). Generally, we grant petitions such as 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
apply the two-part, two-factor analysis for LEO retirement coverage in
accordance with Klipp v. Department of Homeland Security , 34 F.4th 1326
(Fed. Cir. 2022), we AFFIRM the initial decision.
BACKGROUND
The appellant held various law enforcement positions within FPS from
August 31, 1997, through his retirement on September 30, 2018, at age 66. Initial
Appeal File (IAF), Tab 21 at 4-5. According to the appellant, he always believed
he was entitled to LEO retirement coverage and did not learn of his ineligibility
until he received his estimated retirement annuity shortly before his retirement.
IAF, Tab 1 at 3, Tab 7 at 53, 63. He obtained a final agency decision on the issue
on May 2, 2022, which denied his claim for LEO retirement coverage. IAF,
Tab 1 at 6. This appeal followed. IAF, Tab 1.
After a hearing, the administrative judge issued an initial decision
affirming the agency’s decision. IAF, Tab 31, Initial Decision (ID). She2
considered the appellant’s position descriptions and his actual duties and
determined that the reason for the appellant’s positions was the protection of
Federal property rather than the investigation, apprehension, or detention of
criminal suspects. ID at 10-23. She concluded that the appellant did not qualify
for LEO retirement coverage. ID at 23.
The appellant has filed a petition for review, re-raising several of his
arguments below and arguing prejudicial error in the administrative judge’s
decision to continue the August 1, 2022 hearing to August 22, 2022. Petition for
Review (PFR) File, Tab 1 at 2-15. The agency has responded to the petition for
review, and the appellant has submitted an untimely reply.2 PFR File, Tabs 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The LEO system is a special retirement system established by Congress for
Federal employees in certain positions to retire at an unusually early age.
Watson v. Department of the Navy , 262 F.3d 1292, 1296 (Fed. Cir. 2001). Under
5 U.S.C. § 8412(d), an employee covered under FERS may retire at age 50 after
completing 20 years of LEO service, or at any age after completing 25 years of
LEO service. A qualifying employee also receives a larger annuity than ordinary
civil service employees but is subject to larger salary deductions during his
employment. Watson, 262 F.3d at 1296. Because of this additional cost to the
Federal Government, eligibility for LEO retirement coverage must be strictly
2 The appellant moved for an extension of time to file a reply to the agency’s response
66 days after he allegedly received the agency’s response in the mail. PFR File, Tab 5
at 2. His motion was thus untimely by 56 days. See 5 C.F.R. § 1201.114(e), (f). He
subsequently submitted a substantive reply and has argued good cause for his untimely
submissions: he assumed that the agency did not perfect its response after it was
rejected by the Board due to length limitations because he received only one submission
by the agency in the mail. PFR File, Tab 5 at 2, Tab 7 at 3. We credit the appellant’s
explanation; however, we do not find that he exercised due diligence or ordinary
prudence under the circumstances. Therefore, we find his motion and substantive reply
to be untimely without good cause shown. See Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180, 184 (1980); 5 C.F.R. § 1201.114(g). We have reviewed his reply
nonetheless, and it does not warrant a different outcome. PFR File, Tab 7 at 6-14.3
construed. Id. at 1298. As with all applications for retirement benefits, an
applicant seeking LEO retirement coverage bears the burden of proving
entitlement by preponderant evidence. See 5 C.F.R. § 1201.56(b)(2).
For purposes of FERS retirement coverage, there are two types of LEO
positions—rigorous (“primary”) and secondary. See 5 C.F.R. § 842.803(a)-(b);
see also Klipp, 34 F.4th at 1329. Primary law enforcement positions earning
credit are those in which an employee’s primary duties are “the investigation,
apprehension, or detention of individuals suspected or convicted of offenses
against the criminal laws of the United States, or [ ] the protection of officials of
the United States against threats to personal safety,” and the duties are
“sufficiently rigorous that employment opportunities should be limited to young
and physically vigorous individuals.” Id.; 5 U.S.C. § 8401(17)(A)(i)-(ii); see also
5 C.F.R. § 842.802.3 Employees whose primary duties involve “maintaining
order, protecting life and property, guarding against or inspecting for violations
of law, or investigating persons other than those who are suspected or convicted
of offenses against the criminal laws of the United States” do not hold a primary
LEO position. See Watson, 262 F.3d at 1298; 5 C.F.R. § 842.802. Service in a
secondary LEO position is covered if the employee moves directly from a
rigorous position to a secondary position, the employee has completed 3 years of
service in a rigorous position, and the employee has been continuously employed
in a secondary position without a break in service exceeding 3 days. 5 U.S.C.
§ 8401(17)(C); 5 C.F.R. § 842.803(b). Consequently, if the employee never held
a rigorous, or primary, LEO position, he cannot meet the requirements for
secondary coverage either. 5 C.F.R. § 842.803(a)-(b).
3 “Primary duties” means those duties of a position that are paramount in influence or
weight; that is, constitute the basic reasons for the existence of the position; occupy a
substantial portion of the individual’s working time over a typical work cycle; and are
assigned on a regular and recurring basis . 5 C.F.R. § 842.802. In general, if an
employee spends an average of at least 50% of his time performing a duty or group of
duties, they are his primary duties. Id.4
During the pendency of the petition for review, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) issued a precedential decision that we
find to be instructive on the issues in this appeal. See Klipp, 34 F.4th at 1332-33.
The Federal Circuit explained that the Board must first examine the position
description (PD) to determine whether the position qualifies as a rigorous LEO
position, then, if the position fails to qualify, afford the appellant the opportunity
to show that the actual duties of his position are sufficient to establish LEO
status. Id. It emphasized that these findings must be independent. Id. at 1333.
Second, in assessing an appellant’s actual duties, the Federal Circuit explained
that “physical vigorousness” is the first and most important factor, and that the
“hazardousness” of the position need only be considered if the position is
sufficiently vigorous. Id. at 1332.
The Federal Circuit reiterated the subfactors it provided in Crowley v.
United States, 398 F.3d 1329, 1339 (Fed. Cir. 2005): “physical vigorousness” is
assessed by evaluating (in order of importance) whether the position has
(1) strenuous physical fitness requirements, (2) age requirements—such as a
mandatory retirement age or a maximum entry age, or (3) a requirement that the
appellant be on call 24 hours a day. See Klipp, 34 F.4th at 1332. Hazardousness
depends on—in order of importance—whether the position (1) requires frequent
and consistent contact with criminal suspects; or (2) authorizes the appellant to
carry a firearm. Id.
In this case, the administrative judge’s analysis was not fully consistent
with the Federal Circuit’s decision in Klipp. ID at 10-23. Nevertheless, because
the record is fully developed on the relevant issues, we will apply the analysis
outlined by the Federal Circuit. In making our findings, we have fully considered
the appellant’s arguments in his petition for review. PFR File, Tab 1 at 2-15.
The appellant’s position descriptions do not describe a rigorous LEO position.
The appellant held four different positions within FPS: (1) Police Officer,
from August 31, 1997, to June 6, 1998; (2) Supervisory Police Officer, from5
June 7, 1998, to February 9, 2002; (3) Physical Security Specialist (Law
Enforcement Security Officer (LESO)), referred to as “Inspector,” from
February 10, 2002, to July 10, 2004, and approximately June 2015 to
September 30, 2018; and (4) Physical Security Specialist (LESO), referred to as
“Canine Handler, ” from July 11, 2004 to approximately June 2015. IAF, Tab 21
at 4-5. We first examine whether, according to the position descriptions, the
primary duties of these positions were rigorous LEO duties. See Klipp, 34 F.4th
at 1333; see also 5 U.S.C. § 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802.
In the PD submitted by the appellant for his GS-8 Police Officer position,
PC5-B330, the first duty described is “law enforcement work in the protection of
life, property, and the rights of individual citizens . . . on Federal property.” IAF,
Tab 8 at 44-45. The PD, when read as a whole, reflects that the basic reason for
the existence of the position is to “patrol” an assigned area. IAF, Tab 8 at 45-47.
The Office of Personnel Management (OPM) regulation at 5 C.F.R. § 842.802
states that the definition of law enforcement officer does not include an employee
whose primary duties involve maintaining order, protecting life and property,
guarding against or inspecting for violations of law, or investigating persons
other than those who are suspected or convicted of offenses against the criminal
laws of the United States. Hence, this type of work is specifically designated by
the OPM regulation to be non-LEO work. Id. at 45-47.
The PD also indicates that the incumbent “initiates and conducts
investigations that extend more than one shift beyond the normal patrol shift on a
regular and recurring basis,” “is involved in the interrogation of suspects,” and
“identifies and arrests violators for crimes.” Id. at 45-46. We note that these
duties would constitute LEO duties if the offenses were against the “criminal laws
of the United States.”4 See 5 C.F.R. § 842.802. However, beyond the statement
4 Crimes that a patrol officer might respond to, such as theft, vandalism, assault,
disorderly conduct, and threats against Federal employees, could be classified as
offenses against the criminal laws of the United States. See Lott v. General Services
Administration, 84 M.S.P.R. 324, ¶ 18 nn.11-15 (1999). 6
that investigations are conducted on a “regular and continuing basis,” the PD does
not contain any other indication that these LEO duties are “primary duties,” such
as a percentage of time spent on these duties. Id.; see 5 U.S.C.
§ 8401(17)(A)(i)-(ii); 5 C.F.R. § 842.802. Regarding rigorousness, the PD states
that the incumbent “must have the physical ability to safely operate motor
vehicles on public highways”; however, the first three pages of the PD—the only
portion supplied by the appellant and available for review—contain no other
mention of physical fitness requirements.5 IAF, Tab 8 at 45-47. The available
pages also do not mention a maximum entry or retirement age. Id. Accordingly,
we find that the Police Officer position fails to qualify for LEO status based on
the available official documentation of the position.
The PD for the appellant’s GS-10 Supervisory Police Officer Position,
PD FM2490, lists approximately nine “major duties,” the majority of which
involve the assignment of work, review of work, and other managerial duties that
appear to be mostly sedentary. IAF, Tab 8 at 36-38. Although the last duty listed
under “major duties” states that the incumbent “may be assigned” other duties,
“including all police functions and responsibilities associated with the Police
Officer (FPO) position,” it is evident that the basic reason for the existence of the
position is to supervise such positions. Id. at 38. Moreover, as with the Police
Officer PD, it appears that the policing duties involve protecting life and property
and, therefore, are non-LEO duties. Id. at 37-38; see 5 C.F.R. § 842.802.
Furthermore, the PD states vaguely that the employee must meet “basic training
and in service training requirements and medical standards established” but does
not specify physical or age requirements. Id. at 40. We conclude that this PD
also does not describe a primary, rigorous LEO position.
5 The agency reports that this PD was submitted by the appellant to the agency as part
of his LEO retirement claim and that the agency was unable to locate the full PD, which
was over 20 years old. IAF, Tab 7 at 14 n.2, 38, Tab 8 at 45-47. The parties stipulated
that this PD applies. IAF, Tab 21 at 4.7
Regarding the appellant’s “Inspector” position, the appellant held this
position at the GS-11 and GS-12 grade levels.6 IAF, Tab 7 at 142-46, Tab 8
at 31-34, Tab 21 at 5. The PDs at both grade levels describe a variety of duties
related to the physical security of government-owned and -leased facilities
including conducting surveys, assessments, and inspections of worksites. IAF,
Tab 7 at 142-43, Tab 8 at 31-32. Based on a reading of the PDs as a whole, we
find that the basic reason for the position is “primary responsibility for the
physical security program” of the assigned building(s) and not the performance of
LEO duties. IAF, Tab 7 at 142, Tab 8 at 31; see 5 C.F.R. § 842.802.
The PDs state that the incumbent also performs duties as a police
officer/law enforcement official and lists a mix of LEO and non-LEO duties
under the description of “law enforcement work.”7 IAF, Tab 7 at 143, Tab 8
at 32. The GS-12 PD further specifies that the law enforcement duties occur on a
“regular and occurring basis.” IAF, Tab 7 at 143. However, we do not find that
the LEO duties are primary based on this language alone. Regarding
rigorousness, the PDs state that the work “requires moderate to arduous physical
exertion in exercising police authorities such as that required to subdue, disarm
and arrest violent or potentially violent persons suspected of crimes. There may
also be exposure to occasional long periods of overtime, shift rotation and
participation in surveillance and undercover operations.” IAF, Tab 7 at 145,
Tab 8 at 34. However, the section titled, “Work Environment,” states that the
work is performed primarily in an office or classroom setting. IAF, Tab 7 at 146,
6 The appellant re-raises an argument on review that FPS intentionally misclassified him
in the Security Administration Series, GS-0080, for the purpose of denying him LEO
coverage. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 61. As noted by the administrative
judge, the issue of the proper classification of a position is generally not within the
Board’s jurisdiction. ID at 9-10; see Pierce v. Merit Systems Protection Board ,
242 F.3d 1373, 1375-76 (Fed. Cir. 2001). Thus, we will not consider this issue.
7 For example, “the protection of life, property and the rights of individual citizens” is
not an LEO duty; however, arresting offenders could be an LEO duty. IAF, Tab 7
at 143, Tab 8 at 32; see Watson, 262 F.3d at 1298; 5 C.F.R. § 842.802.8
Tab 8 at 34. Thus, we conclude that, although these PDs reflect that the position
involves some LEO duties that are physically demanding, they do not reflect that
they are the “primary duties” of the position.
Lastly, the PD for the appellant’s Canine Handler position states that, “in
conjunction with law enforcement and security duties, incumbent of this position
also spends a significant portion of time (50%) working as a member of an
Explosive Detection Dog (EDD) team (handler and canine), searching for
explosive devices.” IAF, Tab 7 at 135. Thus, the PD clearly describes at least
50% non-LEO duties because searching for explosive devices is not an LEO duty.
Id.; see Koenig v. Department of the Navy , 91 M.S.P.R. 1, ¶ 14 (2001), aff’d,
315 F.3d 1378 (Fed. Cir. 2003) . As with the Inspector PD, the “law enforcement
work” described is a mix of LEO and non-LEO duties, and the same physical
demands as the Inspector PD are listed.8 IAF, Tab 7 at 136-38. However, as with
the Inspector PD, most of the PD is devoted to a description of security duties,
and the PD also states that the work is “performed primarily in an office or
classroom setting.” Id. at 136-39. We conclude that any rigorous LEO duties
performed make up only a portion (less than 50%) of the duties according to the
PD and thus are not “primary duties.” See 5 C.F.R. § 842.802.
Accordingly, based on the position description evidence alone, we do not
find that any of the four positions held by the appellant during his tenure qualify
for LEO coverage.
The appellant has not established entitlement to LEO coverage based on the
actual duties of his positions.
Consistent with our instruction by the Federal Circuit in Klipp, we turn
next to whether the appellant is entitled to LEO retirement coverage based solely
on the actual duties of these positions. See Klipp, 34 F.4th at 1333. Much of the
8 The Canine Handler PD further requires the ability to lift the weight of the canine,
typically 60 pounds, and carry the canine for approximately 25 feet. IAF, Tab 7 at 138.
Because this physical requirement is related to a non-LEO duty, i.e., explosives
detection, it is not evidence of a rigorous LEO duty. 9
initial decision as well as the testimony at the hearing was devoted to an analysis
of the appellant’s actual duties. ID at 10-23; IAF, Tab 25, August 1, 2022
Hearing Recording (HR-1); IAF, Tab 27, August 22, 2022 Hearing Recording
(HR-2). We find no error in the administrative judge’s factual findings regarding
the appellant’s actual duties. ID at 10-23. Nevertheless, according to the Federal
Circuit in Klipp, the questions of vigorousness and hazardousness should be
separately discussed. Klipp, 34 F.4th at 1333. The factors relevant to
vigorousness are—in order of importance—whether the position has (1) strenuous
physical fitness requirements, (2) age requirements—such as a mandatory
retirement age or a maximum entry age, and (3) a requirement that an employee
be on call 24-hours a day. Id. at 1332.
The appellant does not dispute the administrative judge’s factual findings
that there were no continued physical fitness requirements in any of his positions.
PFR File, Tab 1 at 7; ID at 10, 19. He argues, however, that this factor should be
irrelevant to the analysis of LEO coverage because officers at other law
enforcement agencies within DHS also do not have recurrent physical fitness
testing but receive LEO coverage. PFR File, Tab 1 at 7-8. Even if the factual
basis for the appellant’s argument is true, his argument is unavailing. Congress,
at 5 U.S.C. § 8401(17)(A)(ii), has restricted LEO retirement coverage to
“rigorous” positions, and we are bound by our reviewing court’s instruction to
consider strenuous physical fitness requirements as a factor. See Klipp, 34 F.4th
at 1332; Crowley, 398 F.3d at 1339; see also Watson , 262 F.3d at 1298 (stating
that eligibility for LEO retirement coverage must be strictly construed). In other
words, the appellant’s argument that other officers are improperly afforded LEO
coverage does not aid him in establishing his own entitlement under the law. We
find that he has not established this first—and most important—factor relevant to
physical vigorousness. Klipp, 34 F.4th at 1333.
Turning to the second factor relevant to physical vigorousness, i.e., age
requirements, the appellant did not present any evidence before the administrative10
judge that there was a maximum age for entry or early mandatory retirement age
for any of his positions. In fact, he expressly denied on cross-examination that
there were such requirements. HR-1. For the first time on review, he argues that
he would have been exempt from a maximum entry age requirement because of
his veteran’s preference, PFR File, Tab 1 at 8-9, and he presents new evidence in
the form of DHS policies regarding maximum entry age requirements for certain
DHS positions including Customs and Border Protection Officers, Firefighters,
and Law Enforcement Officer positions, id. at 16-19.9 We decline to consider
this new argument and evidence presented for the first time on review because the
appellant has not shown that it was unavailable before the record below. See
Chin v. Department of Defense , 2022 MSPB 34, ¶ 8; Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 34 n.10.
Regarding the third—and least important—factor related to the
vigorousness of the actual duties of a position, the appellant reasserts on review
that he was required to be on call 24 hours a day during at least a portion of his
career.10 PFR File, Tab 1 at 10-11; IAF, Tab 19 at 8; see Klipp, 34 F.4th at 1332.
More specifically, he argues that the “Home-to-Work” program, which allowed
him to take home his police vehicle, required that he document his “call-outs” in
a monthly report. PFR File, Tab 1 at 11; IAF Tab 19 at 8. He asserts that he
documented approximately 30 callouts between late 2014 and early 2018, when
he held the position of Canine Handler. PFR File, Tab 1 at 11; IAF Tab 19 at 8.
In finding no on-call requirement, the administrative judge appeared to credit the
testimonies of the Regional Director for FPS Region 3 and the FPS Branch Chief
for Canine Operations. ID at 12, 19. We find the testimony of these witnesses
9 The agency contends that these policies did not apply to the positions held by the
appellant. PFR File, Tab 4 at 26-27.
10 The administrative judge stated that it was undisputed that there were no on-call work
requirements, ID at 21, which is not entirely consistent with the appellant’s pleadings or
arguments furthered on cross-examination, IAF, Tab 19 at 8; HR-2 (cross-examination
of the FPS Branch Chief for Canine Operations).11
that the Home-to-Work vehicle program was voluntary, and that participants were
not restricted to particular locations or subject to disciplinary action for failure to
respond to calls from a dispatcher, to be persuasive evidence that the appellant
was not required by the obligations of his position to be on call 24 hours a day.
HR-2 (testimony of the Regional Director for FPS Region 3; testimony of the FPS
Branch Chief for Canine Operations).
The appellant attempts to impeach the testimony of these witnesses by
submitting, for the first time on review, documentation of the Home-to-Work
Transportation Program directive. PFR File, Tab 1 at 14, 20-28. This directive
states, in pertinent part, that the GS-0080, Certified Federal Law Enforcement
Security Officers / Inspectors “are required to provide a 24 hour response.” Id.
at 25. Again, 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, and we find
no such showing here. See Chin v. Department of Defense , 2022 MSPB 34, ¶ 8.
In addition, the Board will not grant a petition for review absent a showing that it
is of sufficient weight to warrant an outcome different from that of the initial
decision. See Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15. Here, even
if the appellant proved a 24-hour on-call requirement, satisfaction of only the
24-hour on-call requirement will not satisfy the physical vigorousness factor. See
Crowley, 398 F.3d at 1339 n.8. This new evidence, therefore, does not warrant an
outcome different from that of the initial decision.
After considering the three subfactors, we conclude that the actual duties of
the appellant’s positions were not sufficiently vigorous to establish LEO status.
As hazardousness need only be addressed if the position is sufficiently vigorous,
we have not considered whether the appellant’s actual duties required frequent
and consistent contact with criminal suspects, as he argues on review, in our
decision in this case. PFR File, Tab 1 at 10-14; see Klipp, 34 F.4th at 1333
(citing Crowley, 398 F.3d at 1339). 12
Finally, the appellant alleges that the administrative judge improperly
continued the August 1, 2022 hearing to August 22, 2022, prejudicing him by
allowing the agency additional time to prepare. PFR File, Tab 1 at 3-4; IAF,
Tabs 22-23; HR-1; HR-2. The prehearing conference order reflects that the
hearing was scheduled to begin on August 1, 2022, and would continue on
August 22, 2022, and that the appellant, bearing the burden of proof in this case,
would present his case-in-chief first. IAF, Tab 21 at 8-9. The appellant did not
object to the hearing schedule at that time. The record further reflects that the
administrative judge permitted the appellant to use the full day on August 1, 2022
to present his case-in-chief, which necessitated the scheduled continuance for the
agency’s presentation of its witness. IAF, Tab 25, Tab 26 at 2-3. Administrative
judges have broad authority to govern the proceedings before them. 5 C.F.R.
§ 1201.41(b); see Morrison v. Department of the Navy , 122 M.S.P.R. 205, ¶ 12
(2015). Under the circumstances, we find that the appellant has not shown that
the administrative judge abused her discretion regarding the scheduling set forth
in the prehearing conference order.
The initial decision is affirmed as modified, consistent with the Federal
Circuit’s analysis in Klipp, 34 F.4th at 1332-33.
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
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.13
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation14
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file15
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.12 The court of appeals must receive your
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. 16
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Shuttleworth_SamuelDC-0842-22-0412-I-1__Final Order.pdf | 2025-03-31 | SAMUEL SHUTTLEWORTH v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0842-22-0412-I-1, March 31, 2025 | DC-0842-22-0412-I-1 | NP |
16 | https://www.mspb.gov/decisions/nonprecedential/Gibson_MelindaNY-0752-22-0028-C-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELINDA GIBSON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-0752-22-0028-C-1
DATE: March 31, 2025
THIS ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, and Laura A. O’Reilly , Esquire, Virginia Beach,
Virginia, for the appellant.
John B. Gupton , Esquire, and Felix A. Lizasuain , Esquire, Kingshill,
Virgin Islands, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
ORDER
The appellant has filed a petition for review, and the agency has filed a
cross petition for review of the compliance initial decision finding the agency in
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
partial noncompliance with the underlying initial decision that reversed the
appellant’s removal. For the reasons set forth below, we GRANT the appellant’s
petition for review, DENY the agency’s cross petition for review, AFFIRM as
MODIFIED the finding in the compliance initial decision that the agency did not
comply with the underlying initial decision when it failed to restore the appellant
to her full duties, and REVERSE the finding in the compliance initial decision
denying the appellant’s requests for reclassification of her position and
restoration of her sick leave balance.
BACKGROUND
The appellant was a GS-9 Victim Advocate Coordinator (VAC) for the
agency’s U.S. Virgin Islands National Guard (VING), effective April 22, 2013.
Gibson v. Department of the Army , MSPB Docket No. NY-0752-22-0028-I-1,
Initial Appeal Tab ( IAF), Tab 9 at 120, Tab 10 at 324. In this position, the
appellant was required to maintain a Department of Defense Sexual Assault
Advocate Credentialing Program (D-SAACP) certificate. IAF, Tab 9 at 22. The
National Organization for Victim Assistance (NOVA) oversees the D-SAAP on
behalf of the agency. Id. at 81. NOVA made a determination to suspend the
appellant’s certificate in November 2020. Id. at 106. Subsequently, in
January 2021, the agency revoked the appellant’s certificate. IAF, Tab 10
at 317-19, Tab 30 at 69-71.
The agency removed the appellant, effective December 4, 2021, for failure
to maintain a condition of employment, the D-SAACP certificate. IAF, Tab 9
at 130-31, Tab 30 at 7 -8. The appellant filed an appeal and, after holding a
hearing, the administrative judge issued a July 11, 2022 initial decision which
reversed the removal upon finding that the agency failed to prove its charge by
preponderant evidence. IAF, Tab 1, Tab 73, Initial Decision (ID) at 2, 12-20, 31.
In making her determination, the administrative judge found that the
agency had control over the D -SAACP certification process. ID at 10, 18-19.2
She reasoned that NOVA is under contract with the Department of Defense
(DOD) to administer the D -SAACP certification process, which DOD designed in
response to a statutory mandate. ID at 14-19. The administrative judge found
that DOD created the certification requirements, that the forms NOVA used were
DOD forms, and that NOVA lacked the authority to revoke a D-SAACP
certification. ID at 17. The administrative judge reviewed the merits of the
agency’s decision to revoke the D-SAACP certificate, found that the agency did
not explain why it revoked the certificate, and concluded that the agency failed to
meet its burden in proving the charge. ID at 14, 19-20. She ordered the agency
to cancel the removal, retroactively restore the appellant, pay her back pay, and
adjust her benefits. ID at 32. Neither party filed a petition for review.
The appellant thereafter filed a motion for attorney fees and expenses
incurred between December 2020 and August 2022. Gibson v. Department of the
Army, MSPB Docket No. NY-0752-22-0028-A-1, Attorney Fees File (AFF),
Tab 1 at 25-52. In an addendum initial decision, the administrative judge granted
the appellant’s motion for attorney fees and costs, in part. AFF, Tab 6,
Addendum Initial Decision (AID) at 2. Specifically, she awarded all the
requested fees but found the appellant could not recover a portion of her costs.
AID at 11-15. She ordered the agency to pay a total of $96,735.00 in fees and
costs. AID at 15. On petition for review, the Board issued a Final Order that
affirmed that decision. Gibson v. Department of the Army , MSPB Docket
No. NY-0752-22-0028-A-1 (A-1), Final Order at 2 (Mar. 20, 2024).
In May 2023, the appellant filed the instant petition for enforcement
alleging that the agency failed to return her to the status quo ante when it did not
restore her full duties as a VAC, failed to upgrade her position to a GS-11 when
the grade changed due to a reclassification while she was separated, and failed to
restore her sick leave balance. Gibson v. Department of the Army , MSPB Docket
No. NY-0752-22-0028-C-1, Compliance File (CF), Tab 1 at 4, Tab 5 at 4-5,
Tab 14 at 5. The agency filed a response, asserting it restored her to her original3
position but she was not performing the full duties due to her lack of the
D-SAACP certification. CF, Tab 2 at 4-5. The agency did not respond to the
appellant’s arguments regarding the reclassification of her position or the
restoration of her sick leave balance. Instead, the agency moved to dismiss the
appellant’s compliance appeal and requested reversal of the underlying initial
decision, arguing that the Board lacks authority and jurisdiction to order relief.
CF, Tab 7.
The administrative judge issued a compliance initial decision granting the
appellant’s petition for enforcement in part. CF, Tab 16, Compliance Initial
Decision (CID). She found that the agency failed to meet its burden of providing
evidence that it was in compliance. CID at 5. Because the parties agreed that the
appellant was not performing her full range of duties, the administrative judge
determined the agency failed to reinstate the appellant to her former position. Id.
She denied the appellant’s request that her position be upgraded due to the
reclassification of the VAC position, concluding that an upgrade was beyond the
scope of ordered relief. CID at 6 n.5. She also denied the appellant’s “belated”
request for restoration of her sick leave balance. Id. She also determined that the
agency’s argument regarding the Board’s authority and jurisdiction was without
merit and explained that the initial decision in the underlying action had since
become final when neither party filed a petition for review. CID at 5-6 n.4.
The appellant has filed a petition for review of the compliance initial
decision, disputing the administrative judge’s findings regarding her request for
her position to be upgraded due to the reclassification and restoration of her sick
leave. Compliance Petition for Review (CPFR) File, Tab 1 at 4-6. The agency
filed a response and a cross petition for review in which it again argues that the
Board has no authority over the Adjutant General of the Virgin Islands or the
Virgin Islands National Guard. CPFR File, Tab 2. The agency did not respond to
the appellant’s arguments regarding the reclassification of the VAC position or
the sick leave balance. Id. The appellant has filed a reply to the agency’s4
response to her petition for review and a response to the cross petition for review.
CPFR File, Tabs 3, 5.
ANALYSIS
We agree with the administrative judge’s decision to grant the appellant’s petition
for enforcement, as modified.
The administrative judge found that the agency did not meet its burden of
proving compliance because it admitted that the appellant was not performing the
full duties of the VAC position and provided no evidence that it had made efforts
towards compliance. CID at 5. The parties do not dispute this finding on review.
We agree with the administrative judge’s determination but modify her reasoning
to explain that the agency has not provided a compelling reason for its failure to
return the appellant to her full duties.
When, as here, the Board finds a personnel action unwarranted, the aim is
to place the appellant, as nearly as possible, in the situation she would have been
in had the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191
(Fed. Cir. 2006). This is called status quo ante relief. Black v. Department of
Justice, 85 M.S.P.R. 650, ¶ 6 (2000). A return to the status quo ante requires that
the agency place the appellant in a position with all the essential privileges of her
previous position. Id. The agency must reinstate the appellant to her former
position and duties absent a strong overriding interest or compelling reasons for
not doing so. Tubesing v. Department of Health & Human Services ,
112 M.S.P.R. 393, ¶ 5 (2009).
The agency bears the burden to prove compliance with the Board’s order by
a preponderance of the evidence.2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
Simply placing an appellant in the same grade, pay, and job title alone is
not status quo ante relief. Kerr v. National Endowment for the Arts , 726 F.2d
730, 733-34 (Fed. Cir. 1984); Doe v. Department of Justice , 95 M.S.P.R. 198, ¶ 7
(2003). An agency is also required to return an appellant to the same or
substantially the same status, duties, and responsibilities. Kerr, 726 F.2d
at 733-34. An appellant’s duties and responsibilities may be changed only if the
agency has demonstrated a compelling reason for doing so. Doe, 95 M.S.P.R.
198, ¶ 7. However, an agency cannot refuse to comply with a Board
reinstatement order based on reasons that were rejected by the Board in the
decision reversing the action. Id., ¶ 14; Briggs v. National Council on Disability ,
68 M.S.P.R. 296, 302 (1995).
Here, the agency argued that it had, in essence, a compelling reason not to
return the appellant to her full duties because she did not have the D -SAACP
certification required to complete the duties of the position. CF, Tab 2 at 4-5. As
detailed above, the administrative judge has already determined in the initial
decision reversing the appellant’s removal that the agency has the ability to
reinstate the appellant’s D-SAACP certification, i.e., that the agency is in control
of the recertification process. ID at 10, 18-19. Because the agency failed to
provide any of the specifics regarding its decision to revoke the appellant’s
certificate, the administrative judge found that the agency failed to prove its
charge relating to the appellant’s alleged failure to maintain the certificate. ID
at 19-20. Because neither party petitioned the Board for review, the initial
decision became the final decision on August 15, 2022. ID at 1, 34; see Morley v.
Department of Veterans Affairs , 2024 MSPB 17, ¶ 2; 5 C.F.R. § 1201.113.6
We modify the compliance initial decision to make specific findings that,
to the extent that the agency asserted below that its decision to revoke the
appellant’s certificate was justified, it cannot rely on this unproven basis for the
appellant’s removal. CF, Tab 2 at 4-5. We also explicitly find that, to the extent
that the agency argued that it was justified in declining to reinstate the certificate
due to the appellant’s failure to submit sufficient application materials, the
agency did not meet its burden of proving compliance because it did not provide
any basis for its determination. Id. at 5. The appellant, on the other hand,
asserted that she submitted her application in October or November 2022, and
later submitted updated forms in May 2023, but did not hear back from the
agency. CF, Tab 5 at 5. The agency has not disputed this claim or explained its
efforts to process the application. Therefore, the agency has failed to prove a
compelling reason for its decision not to assign the appellant the full duties of her
position. Because the agency has the burden on compliance and has failed to
meet that burden, we agree with the administrative judge’s determination of
noncompliance.
We reverse the administrative judge’s denial of the appellant’s request to be
reclassified from a GS-9 to a GS-11 and find that the agency is noncompliant on
this issue.
On review, the appellant reargues that the agency has failed to provide
status quo ante relief because it has not retroactively upgraded her to a GS-11,
consistent with its reclassification of all GS-9 VAC positions to the GS -11
position of Sexual Assault Prevention and Response Specialist (Victim
Advocate). CF, Tab 5 at 7-10, 24, Tab 14 at 5; CPFR File, Tab 1 at 4-5. The
agency has not responded to this argument. The administrative judge denied the
appellant’s request for her position to be upgraded to a GS-11 after the VAC
reclassification because the underlying initial decision “did not contemplate a
reclassification/upgrade.” CID at 6 n.5. We disagree and again find the agency
in noncompliance. 7
Placing the appellant in the status quo ante means restoring her, as nearly
as possible, to the situation she would have been in had the personnel action that
formed the basis of the Board appeal not occurred. Tubesing, 112 M.S.P.R. 393,
¶ 5. In deciding whether reinstating an employee to her former position at her
prior grade/level, notwithstanding an intervening reclassification, amounts to a
restoration to the status quo ante, the Board will analyze the reasons why the
position was reclassified in order to determine whether the employee would have
remained in the position at the higher grade level if the unwarranted personnel
action had not occurred. Taylor v. Department of the Treasury , 43 M.S.P.R. 221,
225 (1990).
The appellant occupied a GS-9 VAC position at the time of her removal in
December 2021. IAF, Tab 10 at 324. The initial decision reversing the
appellant’s removal was issued on July 11, 2022. ID at 1. Below, she submitted
documentation reflecting that on June 8, 2022, the agency reclassified all the
VAC positions from “Victim Advocate Coordinator, GS-0301-09” to “Sexual
Assault Prevention and Response Specialist (Victim Advocate) GS -0101(99)-11.”
CF, Tab 5 at 7-10. It explicitly stated that, “[d]ue to the change in grade and
occupational series, T5305***, Victim Advocate Coordinator, GS -0301-09 is
abolished.” Id. at 9. The classification announcement also stated, in relevant
part, that “[t]his position has been upgraded as a result of position review;
therefore, current incumbents meeting the full performance level of this new
position description may be non-competitively promoted, if otherwise qualified.”
Id. at 10.
On February 27, 2023, the appellant was notified that her current position
had been abolished and that she was being reassigned from the position of GS -9
VAC, “T5-030500” to the “GS-0301-09, Victim Advocate Coordinator
(T5305P01) position.” Id. at 24. The agency did not address the reclassification
issue below, and again has not done so on review. Because the agency has not
proven its compliance on this issue, we find it noncompliant and order the agency8
to retroactively place the appellant in a GS-11 Assault Prevention and Response
Specialist (Victim Advocate) position.
We reverse the administrative judge’s denial of the appellant’s request for
restoration of the appellant’s sick leave balance and find that the agency is
noncompliant on this issue.
The appellant reargues that the agency failed to restore the sick leave she
had accrued prior to her removal. CPFR File, Tab 1 at 6; CF, Tab 14 at 5. For
the first time on review, she submits leave and earnings statements from February
2022 with a sick leave balance of 100 hours, and from March 2023 with a sick
leave balance from the prior year of 19.5 hours, to demonstrate that her sick leave
was not restored. CPFR File, Tab 1 at 8-9. However, she has not shown that this
evidence was unavailable prior to the close of the record on appeal below, despite
her due diligence; thus, we have not considered this new evidence on review. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that 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).
Regardless, the burden is on the agency to submit proof of compliance with
the Board’s final order. Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). Here, the agency has not disputed, or otherwise addressed, the
appellant’s claim as to the restoration of her sick leave balance. CF, Tab 2 at 4-5,
Tab 10 at 4-6, Tab 15 at 3; CPFR File, Tab 2. Similarly, the administrative judge
stated the request was “belated” without explanation and did not otherwise
address this allegation.3 CID at 6 n.5.
3 To the extent the administrative judge meant that the appellant untimely sought
enforcement on this issue, we disagree. A petition for enforcement of a Board order
must be filed “promptly.” 5 C.F.R. § 1201.182(a). A petition filed more than 30 days
after the date the agency notifies the appellant of its compliance with a Board order is
presumed untimely, and the appellant must show good cause for the delay. Id. Here,
the agency has not claimed, and there is no indication, that it has notified the appellant
of its compliance with the Board’s order. Therefore, the record lacks any basis on
which to find that the appellant exceeded the 30-day timeliness requirement.9
The underlying initial decision ordered the agency, in relevant part, “to pay
appellant . . . back pay . . . and to adjust benefits with appropriate credits and
deductions.” ID at 32. An employee whose removal is reversed is entitled to
recrediting of her sick leave. Andreko v. Department of Transportation ,
30 M.S.P.R. 65, 67 (1986). Because the agency has not provided evidence of its
compliance on this issue, we find it noncompliant and order the agency to restore
the appellant’s sick leave balance.
We deny the agency’s cross compliance petition for review.
In its cross petition for review, the agency maintains that the Board lacks
authority and jurisdiction over National Guards and adjutant generals. CPFR
File, Tab 2 at 7-20. The Board usually will not consider new evidence and
argument regarding the merits of a case during a compliance proceeding, and we
decline to do so here. See, e.g., Senyszyn v. Department of the Treasury ,
110 M.S.P.R. 437, ¶ 2 n.* (2009); Henry v. Department of Veterans Affairs ,
108 M.S.P.R. 458, ¶ 13 (2008). In any event, the Board rejected this argument in
its Final Order affirming the addendum initial decision granting the appellant’s
motion for attorney fees and costs. A-1 Final Order at 2-3. We decline to revisit
that reasoning here.
Because we have found the agency in noncompliance, it is being directed to
file evidence of compliance with the Clerk of the Board and the appellant will be
afforded the opportunity to respond to that evidence. The appellant’s petition for
enforcement will be referred to the Board’s Office of General Counsel, and,
depending on the nature of the submissions, an attorney with the Office of
General Counsel may contact the parties to further discuss the compliance
process. The parties are required to cooperate with that individual in good faith.
Because the purpose of the proceeding is to obtain compliance, when appropriate,
an Office of General Counsel attorney or paralegal may engage in ex parte
communications to, among other things, better understand the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will10
issue a final decision fully addressing the appellant’s petition for review of the
compliance initial decision and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
We ORDER the agency to submit to the Clerk of the Board within
45 days of the date of this Order satisfactory evidence of compliance. This
evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183(b)(1)(i), including submission of evidence and a narrative statement
of compliance. The agency must serve all parties with copies of its submission.
The Board will assign a new docket number to this matter, NY-0752-
22-0028-X-1. All subsequent filings should refer to the new docket number set
forth above and should be faxed to (202) 653-7130 or mailed to the following
address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at
5 C.F.R. § 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(b)(1)(i). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that she is satisfied with the agency’s action
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show why the Board should not impose sanctions for the agency’s11
noncompliance in this case. 5 C.F.R. § 1201.183(c)(1). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Gibson_MelindaNY-0752-22-0028-C-1__Order.pdf | 2025-03-31 | MELINDA GIBSON v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-0752-22-0028-C-1, March 31, 2025 | NY-0752-22-0028-C-1 | NP |
17 | https://www.mspb.gov/decisions/nonprecedential/Rike_Nicolas_J_PH-0752-23-0075-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICOLAS JAMES RIKE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-23-0075-I-1
DATE: March 31, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Renee Toney , Esquire, Williamsville, New York, for the appellant.
Heather C. Tenney , Esquire, Albany, New York, for the appellant.
Amanda L. E. Smith , Esquire, Buffalo, New York, for the appellant.
Scott W. Flood , Esquire, and Alison McKay , Esquire, Portsmouth, New
Hampshire, for the agency.
Cindee Carter , Kittery, Maine, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 30 -day suspension without 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 erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Prior to his removal, the appellant was a GS -12 Supply Management
Specialist in Code 500 at the agency’s Portsmouth Naval Shipyard in Kittery,
Maine. Initial Appeal File (IAF), Tab 7 at 4, 54. On March 23, 2022, he
experienced a mild heart attack while on duty, purportedly due to stress, and went
to the emergency room. Id. at 69. The appellant returned to duty on March 29,
2022. Id. That afternoon, just before the end of his shift, the appellant met with
his first-line supervisor, M.S., to muster out, provide the requested leave slips for
his absences following his medical emergency, and ask his supervisor to sign to
acknowledge receipt of a Federal Employees Notice of Traumatic Injury and
Claim for Continuation of Pay/Compensation Form CA -1 (CA-1). Id. at 69-70,
3
106. During this encounter, the appellant and M.S. had a confrontation. Id.
at 70-74, 106-08.
On April 18, 2022, the agency proposed removing the appellant for
inappropriate behavior related to the confrontation on March 29. Id. at 85-91. In
support of its charge, the agency alleged that in response to M.S.’s assertion that
he was uncomfortable signing the CA -1 before speaking with someone about it
due to his lack of familiarity, the appellant yelled and cursed at him, called him a
“fucking liar” and a “[f]ucking [m]other [f]ucker,” and demanded that he sign the
CA-1. Id. at 85-86. On July 5, 2022, the agency issued a decision letter
sustaining the inappropriate behavior charged and removed the appellant effective
July 9, 2022. Id. at 55-60. On July 14, 2022, the appellant amended a pending
formal equal employment opportunity (EEO) complaint to include his removal.
Id. at 22-28. On November 7, 2022, after investigation, the appellant received a
Final Agency Decision (FAD) that found that he did not prove that he was
subjected to discrimination based on disability or reprisal. Id. at 30-49.
Subsequently, the appellant filed the instant mixed -case appeal. IAF, Tab 1; see
5 C.F.R. § 1201.154(b)(1).
After holding the requested hearing, IAF, Tab 15 at 4, Tabs 51, 54-55,
Hearing Recording (HR), the administrative judge issued an initial decision, IAF,
Tab 61, Initial Decision (ID). Therein, he sustained the inappropriate behavior
charge and found nexus between the charge and the efficiency of the service but
mitigated the removal penalty to a 30 -day unpaid suspension as the maximum
reasonable penalty. ID at 10-17. The administrative judge also concluded that
the appellant failed to establish his affirmative defenses of discrimination based
on his disability and his prior EEO activity. ID at 15-17.
The agency has filed a petition for review of the initial decision, arguing
that the administrative judge misapplied the law to the facts and abused his
4
discretion by mitigating the agency’s chosen penalty.2 Petition for Review (PFR)
File, Tab 1 at 9-35. The appellant has responded in opposition to the agency’s
petition for review. PFR File, Tab 4. The agency has filed a reply to the
response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly held that the agency proved its charge and
established nexus and that the appellant failed to prove his affirmative defenses.
Generally, in an adverse action appeal, an agency must prove its charge by
a preponderance of the evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty it imposed is within the
tolerable bounds of reasonableness. Hall v. Department of Defense , 117 M.S.P.R.
687, ¶ 6 (2012). Here, the administrative judge found that the agency proved its
charge of inappropriate behavior by preponderant evidence and established a
nexus between the action and the efficiency of the service. ID at 10-15. The
administrative judge also found that the appellant failed to prove his affirmative
defenses, reasoning that the limited evidence and testimony did not suggest any
retaliatory or discriminatory animus on the part of the relevant agency officials.
ID at 15-17. The parties do not challenge these findings on review, and we
discern no reason to disturb them. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same);
Parker v. U.S. Postal Service , 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that
2 With its petition for review, the agency submitted a certification of its compliance
with the interim relief order and provided evidence demonstrating that it has complied
with the administrative judge’s interim relief order. Petition for Review (PFR) File,
Tab 2 at 4-10; see 5 C.F.R. § 1201.116(a). The appellant does not challenge the
agency’s certification on review.
5
there is sufficient nexus between an employee’s conduct and the efficiency of the
service when the conduct occurred in part at work).
Therefore, the only issue that remains on review is whether the penalty of
removal was reasonable based on the single charge of inappropriate behavior. On
review, the agency argues that it was and that the administrative judge abused his
discretion by failing to give deference to its penalty determination when he
mitigated its chosen penalty by reweighing the Douglas factors and substituting
his own judgment for that of the agency. PFR File, Tab 1 at 9-10, 31-33; see
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981). Upon
considering the agency’s arguments on review, as discussed below, we are not
convinced that the administrative judge erred in mitigating the removal to a
30-day suspension.
The administrative judge correctly found that the agency failed to properly
consider the relevant Douglas factors and he properly exercised his discretion to
reweigh the factors and mitigate the agency’s penalty.
Where, as here, the agency’s charge has been sustained, the Board will
review an agency -imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion within tolerable
limits of reasonableness. Chin v. Department of Defense , 2022 MSPB 34, ¶ 24;
Douglas, 5 M.S.P.R. at 306 (articulating a nonexhaustive list of factors relevant
to a penalty determination in an adverse action). In determining whether the
selected penalty is reasonable, the Board gives due weight to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency. Chin, 2022 MSPB 34, ¶ 24 (citing Stuhlmacher v. U.S.
Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001)). The Board will modify a penalty
only when it finds that the agency failed to weigh the relevant factors or that the
penalty the agency imposed clearly exceeded the bounds of reasonableness. Id.
However, if the deciding official failed to appropriately consider the relevant
factors, the Board need not defer to the agency’s penalty determination. Id.
6
In mitigating the agency’s chosen penalty, the administrative judge
reviewed the proposing official’s Douglas factor analysis, with which the
deciding official concurred, and concluded that the agency failed to properly
consider all of the evidence in its analysis. ID at 19-22. The agency challenges
this finding on review, arguing that the administrative judge erroneously relied on
the proposing official’s Douglas factors analysis. PFR File, Tab 1 at 31-33.
Specifically, it contends that “the record clearly establishes that the [deciding
official] weighed the relevant Douglas factors and specifically considered [the]
[a]ppellant’s reported job tensions and stress, his allegation that his supervisor
provoked him by initiating the swearing and shouting, as well as his prior
successful performance and ten-year tenure as mitigating factors.” PFR File,
Tab 1 at 32. The agency cites its decision letter and the deciding official’s
testimony to support its contention. IAF, Tab 7 at 55-59, Tab 51, HR (testimony
of deciding official). We are not persuaded.
In the initial decision, the administrative judge identified the relevant
information in determining that the agency failed to properly consider the
relevant mitigating factors in conducting its analysis. ID at 19-22. For example,
in its decision letter, the deciding official stated that “[he] considered and
concur[red] with all of the Douglas factors outlined in [the proposed removal
letter].” IAF, Tab 7 at 59. The problem with this is that, as the administrative
judge correctly acknowledged, the proposing official believed that there were no
mitigating factors such as unusual job tensions, harassment, or provocation
surrounding the charged offense. ID at 20; IAF, Tab 7 at 89. The evidence
indicating that such factors existed belies such a conclusion. First, the appellant
named M.S. a responsible management official for his alleged harassment in the
underlying EEO complaint. IAF, Tab 7 at 23. Next, the argument at issue stems
from the appellant’s attempt to get M.S.’s signature on the CA -1 after having a
purported stress -induced heart attack while on duty. IAF, Tab 7 at 69, 85-86.
And the appellant attributes that stress, in part, to the alleged bullying and
7
harassment he faced from M.S. and other management officials. Id. at 67-75;
IAF, Tab 58, HR (testimony of the appellant). Then, notably, M.S. conceded that
he directed the appellant to return to his office after the appellant tried to leave
before things really escalated. IAF, Tab 7 at 70; Tab 51, HR (testimony of M.S.).
The deciding official also concurred with the proposing official’s
conclusion that the appellant’s conduct outweighed his 10 -year tenure and
satisfactory performance, particularly in light of his prior discipline.3 IAF, Tab 7
at 59-60, 87-88, Tab 51, HR (testimony of deciding official). The administrative
judge found this suggestive evidence that the agency did not consider the
appellant’s work record as a mitigating factor. ID at 20, 22. We agree with the
administrative judge. In concurring with the proposing official’s analysis, the
deciding official assigned more weight to the appellant’s prior unrelated
discipline. IAF, Tab 7 at 59-60, 87-88, 109-12. Although the Board generally
will not discount a prior disciplinary record because it is for an unrelated offense,
if the nature of the prior misconduct is sufficiently different from the charges in
the proposal at issue, the difference may significantly diminish the weight of that
prior discipline in determining a proper penalty. See Skates v. Department of the
Army, 69 M.S.P.R. 366, 369 (1996); Lewis v. Department of the Air Force ,
51 M.S.P.R. 475, 484 (1991). As such, we are unconvinced that the appellant’s
attendance-related discipline, which is sufficiently different from the charged
inappropriate behavior, outweighs his 10 years of service, which was free from
the discipline at issue here.
Further, despite the agency’s argument to the contrary, the deciding official
testified that he considered that the factors mentioned above gave context to the
dispute but did not excuse the appellant’s behavior. IAF, Tab 51, HR (testimony
of deciding official). Given these facts, it seems improbable that the deciding
3 The record reflects that the appellant received his first disciplinary action, a letter of
reprimand, on August 19, 2021, for an unauthorized absence, lack of candor, and failure
to follow instructions. IAF, Tab 7 at 111-12. He also received a 14 -day suspension on
January 24, 2022, for failure to comply with timekeeping procedures. Id. at 87, 109-10.
8
official adequately considered the relevant mitigating factors. Therefore, we find
that the administrative judge properly exercised his discretion in reducing the
deference to the agency’s penalty determination and reweighing the relevant
mitigating factors. ID at 19-22.
The administrative judge did not abuse his discretion by concluding that the
maximum reasonable penalty was a 30 - day suspension.
The agency argues on review that even if the administrative judge correctly
determined its penalty determination was not entitled to deference, removal is
within the tolerable limits of reasonableness. PFR File, Tab 1 at 33-35.
Specifically, the agency contends that removal is reasonable because it is
consistent with its table of penalties for a third disciplinary action and is
comparable to personnel actions taken at the shipyard. PFR File, Tab 1 at 33-35.
This argument is unavailing.
In the initial decision, the administrative judge determined that the removal
penalty exceeded the bounds of reasonableness. ID at 19-22. He explained that
the appellant’s conduct was serious but concluded that it did not warrant removal
under the circumstances. ID at 19. In so finding, the administrative judge relied
on the documentary evidence and witness testimony and made credibility findings
regarding the March 29, 2022 confrontation and the surrounding circumstances
under Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). ID at 8,
10-15, 18-19. He considered that in most cases where the Board upheld removal
based on a single charge of disrespectful conduct (or similarly titled misconduct),
the misconduct involved either multiple specifications, abusive or obscene
language, and/or physical action. ID at 19 (citing Suggs v. Department of
Veterans Affairs , 113 M.S.P.R. 671, ¶ 13 (2010)). He recognized that the charged
misconduct involved obscene/abusive language, however he found that both the
appellant and M.S. were “shouting and using inappropriate language,” and such
behavior was seemingly common at the shipyard. ID at 15, 18-21. He also
considered that the disciplinary actions of the proffered comparators involved
9
repeated instances of inappropriate behavior rather than a single incident and
noted that only one of the four faced removal. ID at 20-21; IAF, Tab 7 at 44-62.
He also found “some dubious analysis” in setting the penalty, reasoning that there
are several disciplinary actions between a 14 -day suspension and removal. Id.
at 20 n.22. Moreover, he took into account the agency’s failure to properly weigh
the mitigating circumstances as explained above. ID at 19-22.
Like the administrative judge, we acknowledge the seriousness of the
charge against the appellant and do not minimize its gravity. ID at 19; see Suggs,
113 M.S.P.R. 671, ¶ 8 (2010) (recognizing that disrespectful conduct is a serious
offense, and agencies are entitled to expect employees to conduct themselves in
accordance with accepted standards), aff’d, 415 F. App’x 240 (Fed. Cir. 2011).
Nonetheless, even though the administrative judge sustained the agency’s single
charge and specification of inappropriate behavior, several mitigating factors
were present that justified mitigation. ID at 15, 19-22; see Suggs, 113 M.S.P.R.
671, ¶¶ 12-15 (finding that the presence of significant mitigating factors justified
reducing the penalty of removal for one charge of disrespectful conduct to a
30-day suspension). Thus, we discern no basis to overturn the administrative
judge’s well-reasoned conclusion that a 30 -day suspension is the maximum
reasonable penalty based on the facts of this case. See Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board may
overturn an administrative judge’s demeanor -based credibility findings only when
it has “sufficiently sound” reasons for doing so); Crosby, 74 M.S.P.R. at 106
(1997); Broughton, 33 M.S.P.R. at 359 (same).
Accordingly, we deny the petition for review and affirm the initial
decision, which sustained the charge of inappropriate behavior but mitigated the
removal penalty to a 30 -day suspension.
10
ORDER
We ORDER the agency to cancel the removal action and substitute in its
place a 30-day suspension effective July 9, 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.
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
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
11
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
13
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
14
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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. | Rike_Nicolas_J_PH-0752-23-0075-I-1__Final Order.pdf | 2025-03-31 | NICOLAS JAMES RIKE v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-23-0075-I-1, March 31, 2025 | PH-0752-23-0075-I-1 | NP |
18 | https://www.mspb.gov/decisions/nonprecedential/Melton_MarieDE-4324-23-0206-I-1_Lack_of_Quorum_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIE MELTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-4324-23-0206-I-1
DATE: March 28, 2025
Marie Melton , Oklahoma City, Oklahoma, pro se.
Richard Wolfe , Esquire, and David L. Miller , Fort Huachuca, Arizona, for
the agency.
Kristine H. Bell , Fort Eustis, Virginia, for the agency.
BEFORE
Cathy A. Harris, Member*
*The Board members completed the voting process before March 28, 2025.
ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA). Vice Chairman
Kerner has recused himself from consideration of this case. Because there is no
quorum to alter the administrative judge’s initial decision, the initial decision
now becomes the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R.
§ 1200.3(b)). This decision shall not be considered as precedent by the Board in
any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Melton_MarieDE-4324-23-0206-I-1_Lack_of_Quorum_Order.pdf | 2025-03-28 | MARIE MELTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-4324-23-0206-I-1, March 28, 2025 | DE-4324-23-0206-I-1 | NP |
19 | https://www.mspb.gov/decisions/nonprecedential/Gilmore_Neenie_PH-0752-20-0388-X-1_PH-0752-20-0388-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEENIE GILMORE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBERS
PH-0752-20-0388-X-1
PH-0752-20-0388-C-1
DATE: March 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ralph B. Pinskey , Esquire, Harrisburg, Pennsylvania, for the appellant.
Karen L. Saxton , Esquire, Justin Nell , Esquire, and Melinda Bonish ,
Esquire, New Cumberland, Pennsylvania, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
FINAL ORDER
On January 12, 2024, the Board issued an Order finding the agency in
noncompliance with the decision in the underlying appeal and granting the
appellant’s petition for review of the compliance initial decision, which had denied
her petition for enforcement. Gilmore v. Department of Defense , MSPB Docket No.
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
PH-0752-20-0388-C-1, Compliance Petition for Review (CPFR) File, Tab 5, Order
(Jan. 12, 2024) (Order); Compliance File (CF), Tab 25, Compliance Initial
Decision (CID); Gilmore v. Department of Defense , MSPB Docket No. PH-0752-20-
0388-I-1, Initial Appeal File (IAF) , Tab 35, Initial Decision (ID) . For the reasons
discussed below, we now find the agency in compliance and DISMISS the
appellant’s petition for enforcement and petition for review.
DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
The agency’s Defense Logistics Agency (DLA) employs the appellant as a
WG-5 Distribution Process Worker. IAF , Tab 4 at 13. In late March and early
April 2020, the appellant made remarks at her place of work, the DLA’s Defense
Distribution Center in New Cumberland, Pennsylvania, suggesting she had
COVID-19 and could spread the virus to others. IAF, Tab 5 at 14-15; ID at 6-9.
On April 14, 2020, the Commanding Colonel for the New Cumberland Defense
Distribution Center issued a bar order denying the appellant access based on her
COVID-related statements. CF, Tab 1 at 26-27. According to the appellant, as a
result of this bar order, the agency placed her on administrative leave on the same
day. CF, Tab 22 at 3. The agency has not disputed this assertion.
The agency removed the appellant from her position based on the same
comments, effective June 27, 2020. Id. The appellant filed an appeal of her
removal. IAF, Tab 1 at 2. The administrative judge issued an initial decision
finding that the agency proved its charge but that the maximum reasonable penalty
was a 15-day suspension. ID at 6-10. He ordered the agency to cancel the removal
and substitute a 15 -day unpaid suspension in its place, and to pay the appellant back
pay and benefits. ID at 10-11. Because neither party filed a petition for review, the
initial decision became the final order of the Board on April 21, 2021. ID at 13;
see 5 C.F.R. § 1201.113(a)-(c) (providing that an initial decision generally
becomes the Board’s final decision if neither party files a timely petition for
review).2
Following the initial decision, on May 10, 2021, the agency placed the
appellant in the same position, but reassigned her to a different facility due to the
bar order. CF, Tab 4 at 15. Specifically, it reassigned her to an installation located
in Mechanicsburg, Pennsylvania. Id. The agency asserted, and the appellant did
not dispute below and has not disputed on review, that the two facilities are within
10 miles of each other. Id. at 7. The base pay for the two facilities is the same, but
the locality pay for the Mechanicsburg Installation is lower than that for the New
Cumberland Defense Distribution Center. CF, Tab 1 at 34. In addition, the union
that represents employees in the appellant’s position differs between the two
facilities. Id. The appellant filed a petition for enforcement arguing that, for a
variety of reasons, her reassignment to the Mechanicsburg Installation was
improper and that she was entitled to back pay representing the difference in
locality pay between the two facilities. CF, Tab 1 at 5; Tab 22 at 2, 4-8, 10-11.
She argued, in the alternative, that she should have received the promotion she
anticipated before her removal. CF, Tab 22 at 11-12.
In the compliance initial decision, the administrative judge found that the
Board lacked jurisdiction over the bar order, the appellant’s reassignment to the
Mechanicsburg Installation, and the difference in locality pay. CID at 3-4. The
appellant filed a petition for review, in which she only contested the agency’s
failure to return her to her position at the New Cumberland Defense Distribution
Center. CPFR File, Tab 1.2 The agency responded to the appellant’s petition for
review, and the appellant replied. Id., Tabs 3-4.
2 As noted in the compliance initial decision, the Board’s regulations provide that, upon a
finding of noncompliance, the party found to be in noncompliance must do the following:
(i) to the extent that the party decides to take the actions required by the initial decision,
the party must submit to the Clerk of the Board, within the time limit for filing a petition
for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions
identified in the initial decision, along with evidence establishing that the party has taken
those actions; and (ii) to the extent that the party decides not to take all of the actions
required by the initial decision, the party must file a petition for review under the
provisions of 5 C.F.R. §§ 1201.114-.115. 5 C.F.R. § 1201.183(a)(6).3
On January 12, 2024, the Board granted the appellant’s petition for review of
the CID. The Board found that, contrary to the administrative judge’s compliance
initial decision, it has jurisdiction to determine whether the appellant was returned
to the status quo ante when she was reassigned immediately after reinstatement.
Order at 5. The Board further found that returning the appellant to a different
facility with different union representation and locality pay was not status quo ante
relief. Id. Further, the Board found that the bar order was not a compelling reason
or overriding interest for not returning the appellant to her prior duty station. Id. at
5-9. The Board also found that the agency needed to pay the appellant additional
back pay representing the difference in pay between the two facilities. In the
January 12, 2024 Order, the Board docketed the instant compliance referral matter,
Gilmore v. Department of Defense , MSPB Docket No. PH-0752-20-0388-X-1,
Compliance Referral File (CRF), and ordered the agency to submit satisfactory
evidence of compliance to the Clerk of the Board within 60 days of the Order’s
date. Id. at 9-10.
On March 8, 2024, the agency submitted its first response to the Board’s
January 12, 2024 Order. CRF, Tab 2. In this and additional submissions, the
agency asserted that it cancelled the appellant’s reassignment to Mechanicsburg,
Pennsylvania, and paid the appellant for the difference in locality pay between
Mechanicsburg, Pennsylvania, and New Cumberland, Pennsylvania, with interest.
Id., Tabs 2, 7. The agency’s responses, however, did not include a narrative
explaining how the agency calculated the backpay and interest amounts. Nor did
they include evidence that the payments were made. Additionally, the appellant
filed responses contending, among other things, that the agency’s backpay
evidence was insufficient. Id., Tab 11.
The Board then ordered the agency to submit additional information to:
(1) demonstrate that it paid the appellant the difference between what the appellant
was paid for the back pay period and what she would have been paid had she been
properly restored to the New Cumberland Defense Distribution Center; and4
(2) demonstrate that it has paid the appellant the interest owed to her based on the
proper backpay award amount. CRF, Tab 12.
ANALYSIS
When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation he would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order by
a preponderance of the evidence.3 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence of
compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
The agency has demonstrated that it has paid the back pay differential.
We first consider whether the agency has demonstrated that it has paid the
appellant the difference between what the appellant was paid for the back pay
period and what she would have been paid had she been properly restored to the
New Cumberland Defense Distribution Center. On December 12, 2024, the agency
provided an explanation of the difference in the back pay between the two
installations, and evidence that it paid the appellant that amount. Specifically, the
agency produced evidence that it paid the appellant for the difference in locality
pay in two installments in the amounts of $2,135.56 and $4,202.54. CRF, Tab 13
at 10, 14, 123, 139. Although appellant raises arguments about relief in her
response, she does not specifically dispute the agency’s calculations regarding this
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5
back pay. CRF, Tab 14. We therefore find that the agency is in compliance with
respect to this issue.
The agency has demonstrated that it has paid the requisite amount of interest.
Next, we consider whether the agency has demonstrated that it has paid the
appellant the appropriate amount of interest. In its Compliance Report, CRF,
Tab 13 at 15-16, the agency details the total interest paid to the appellant, and
provides calculations and evidence in support thereof. Although appellant raises
arguments about relief in her response, she does not specifically dispute the
agency’s calculations regarding the interest payments. CRF, Tab 14. We therefore
find that the agency is in compliance with respect to this issue.
The Appellant’s remaining arguments do not require a different result.
In her response dated December 23, 2024, the appellant raises additional
issues regarding her relief. Specifically, she claims that she has not yet been
provided complete relief, including interim relief. CRF, Tab 14.
According to the appellant, the agency removed her from employment a
second time, effective December 29, 2023, because of “irregular attendance.”
CRF, Tab 14 at 8. Appellant’s counsel complains that the agency did not inform
the Board or him of this new removal action. Id. Appellant apparently did not
appeal this new removal action. The appellant seeks interim relief from the date of
her second removal, on or about December 29, 2023, to the present. CRF, Tab 14
at 13. However, the December 29, 2023 removal, or any entitlement to
reinstatement (including interim relief) subsequent to that removal, is not a matter
before us in this compliance action. Simply put, the appellant is not entitled in this
petition for enforcement to interim relief for a second, separate removal, unrelated
to the merits of the case out of which the present petition for enforcement arose.
Because appellant’s December 29, 2023 removal is not the subject of this
compliance action or the underlying appeal, such relief is not appropriate to be
awarded herein. See Rothwell v. U.S. Postal Service , 68 M.S.P.R. 466, 467 (1995)6
(an interim relief order does not insulate an appellant from a subsequent adverse
action so long as that action is not inconsistent with the initial decision) (citations
omitted).
The appellant also claims that the agency did not pay the appellant the
differential locality pay for days that she did not work between July 12, 2020
(15 days after her reinstatement), and December 29, 2023. The appellant claims,
again, that the interim relief period continued during this time. Again, for the
reasons stated above, these matters are beyond the scope of the present
proceedings.
In light of the foregoing, we find that the agency is in compliance with its
outstanding compliance obligations and dismiss the appellant’s petition for
enforcement and petition for review. 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. 7
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.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court9
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.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 | Gilmore_Neenie_PH-0752-20-0388-X-1_PH-0752-20-0388-C-1_Final_Order.pdf | 2025-03-28 | NEENIE GILMORE v. DEPARTMENT OF DEFENSE, MSPB Docket No. 1, March 28, 2025 | PH-0752-20-0388-I-1; PH-0752-20-0388-X-1; PH-0752-20-0388-C-1 | NP |
20 | https://www.mspb.gov/decisions/nonprecedential/Jones_AnthonyDE-0752-21-0269-P-1_DE-0752-21-0269-P-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY JONES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
DE-0752-21-0269-P-1
DE-0752-21-0269-P-2
DATE: March 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Jones , Jonesboro, Arkansas, pro se.
Richard Wolfe , David L. Miller , and Leatrice Reason Taylor , Esquire,
Fort Huachuca, Arizona, for the agency.
Mary Rae Dudley , Fort Eisenhower, Georgia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed petitions for review of the initial decisions, which
partially granted his motion for compensatory damages, awarding the appellant
$10,000, and denied in full his motion for consequential damages. On petitions for
review, the appellant argues that the administrative judge underestimated the
emotional, mental, financial, and professional harm caused by the agency’s
unlawful removal of him.2 Generally, we grant petitions such as these only in the
following circumstances: the initial decisions contain erroneous findings of
material fact; the initial decisions are based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the case;
the administrative judge’s rulings during either the course of the appeals or the
initial decisions were not consistent with required procedures or involved an abuse
of discretion, and the resulting error affected the outcome of the cases; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the records closed. Title 5 of the Code of Federal
Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the
filings in these appeals, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petitions for review. Therefore, we
DENY the petitions for review and AFFIRM the initial decisions, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).3
2 Though adjudicated separately below, we join the two appeals on review because the
claims arise from the same unlawful agency action, the facts are interrelated, and joinder
will expediate processing without adversely affecting the interests of the parties. See
5 C.F.R. § 1201.36(b).
3 For the first time in both the compensatory damages and consequential damages appeals,
on review the appellant requests a new administrative judge due to bias. Jones v.
Department of the Army , MSPB Docket No. DE-0752-21-0269-P-1, Petition for Review
File, Tab 1 at 13-17; Jones v. Department of the Army , MSPB Docket No. DE-0752-21-
0269-P-2, Petition for Review File, Tab 1 at 14-17. Generally, the Board will not
consider evidence or argument submitted for the first time with petitions for review
absent a showing that it was unavailable before the records were 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 provided evidence or argument that despite his due diligence he was2
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).
unable to request the recusal of the administrative judge below. Although the appellant
made this argument in his related compliance appeal, Jones v. Department of the Army ,
MSPB Docket No. DE-0752-21-0269-C-1, he did not make it below in either of these
damages appeals. As such we also deny the appellant’s request for recusal of the
administrative judge in his damages appeals.
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If
you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a4
court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives this
decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals
of competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510. 6
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Jones_AnthonyDE-0752-21-0269-P-1_DE-0752-21-0269-P-2_Final_Order.pdf | 2025-03-28 | ANTHONY JONES v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-21-0269-P-1, March 28, 2025 | DE-0752-21-0269-P-1; DE-0752-21-0269-P-2 | NP |
21 | https://www.mspb.gov/decisions/nonprecedential/Lynn_DanielSF-0714-17-0702-R-2_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL LYNN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-17-0702-R-2
DATE: March 28, 2025
THIS ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Nadine Scott and Stephen Funderburk , Seattle, Washington, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
ORDER
The appellant has filed a petition for enforcement of the settlement
agreement filed in, and/or a request to reopen the Board’s final order in, Lynn v.
Department of Veterans Affairs, MSPB Docket No. SF-0714-17-0702-R-1
(Lynn II), which dismissed the underlying appeal in Lynn v. Department of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Veterans Affairs, MSPB Docket No. SF-0714-17-0702-I-1 ( Lynn I), pursuant to a
settlement agreement entered into the record in Lynn II. For the reasons set forth
below, we DENY the appellant’s reopening request. Additionally, we
FORWARD the appellant’s allegations of noncompliance to the Western Regional
Office for docketing as a petition for enforcement of the settlement agreement
entered into the record in Lynn II.
The Board has authority to reopen, on its own motion, appeals in which it
has rendered a final decision. 5 U.S.C. § 7701(e)(1)(B); 5 C.F.R. § 1201.118.
The Board will exercise its discretion to reopen an appeal only in “unusual or
extraordinary circumstances,” such as an intervening event that directly bears on
the result or the discovery of a misrepresentation or fraud. Jennings v. Social
Security Administration, 123 M.S.P.R. 577, ¶ 17 (2016). Further, the Board will
reopen an appeal only if the appellant has exercised due diligence and presented
the request to reopen in a timely manner, generally measured in weeks. See
Keys v. Office of Personnel Management, 113 M.S.P.R. 173, ¶ 8 (2010).
In the instant appeal, the appellant argues that the agency failed to properly
serve its July 14, 2023 reopening request on the appellant and his representative,
or alternatively, that the agency is in breach of the settlement agreement, and he
requests that the Board “enforce the four corners of the parties’ settlement
agreement contract under well established contract law and/or concurrently
reopen and vacate the Board’s Final Order” settling the underlying Board appeal.
Lynn v. Department of Veterans Affairs, MSPB Docket No. SF-0714-17-
0702-R-2, Reopening Appeal File (RAF), Tab 1 at 1-2, 8. However, the appellant
is not challenging the validity of the settlement agreement or alleging that the
agreement is the product of fraud or misrepresentation on the part of the agency
in seeking reopening, and the appellant’s alleged failure to receive the agency’s
reopening request in Lynn II, even if true, has no bearing on the validity of the
settlement agreement itself and whether grounds now exist for reopening the final
order dismissing that appeal as settled. The parties negotiated and executed a2
settlement agreement that provided the appellant with significant benefits, and
both parties took steps to execute the settlement agreement following the request
to enter the agreement into the record for Board enforcement purposes, including
the appellant submitting a vendor payment request form to receive the lump sum
payment set forth in the agreement. Lynn II, Tab 1 at 5-8; RAF, Tab 1 at 4,
13-14; Tab 4 at 13-15.
Additionally, the record does not support the appellant’s assertion that he
was not timely notified of the agency’s request to reopen the appeal in Lynn I for
the purpose of entering the settlement agreement into the Board record and
dismissing the appeal as settled. RAF, Tab 4 at 6-7, 10. The appellant has
provided email correspondences his representative received from the agency
dated August 17, 2023—twenty-one days before the Board issued the final order
in Lynn II dismissing the appeal as settled—stating that the agency had filed a
request to reopen the appeal in Lynn I for the purpose of entering the settlement
agreement into the record and seeking dismissal of the underlying appeal as
settled. RAF, Tab 1 at 16-17. The appellant failed to file any objection to the
agency’s reopening request in the intervening 21-day period, and the Board
issued the Final Order in Lynn II on September 7, 2023, granting the agency’s
reopening request. Lynn II, Final Order (Sept. 7, 2023).
Finally, regarding his alternative argument that the agency is in breach of
the settlement agreement, the appellant alleges that the agency has failed to
comply with its obligations under the settlement agreement by failing to process
the vendor payment request forms submitted by his non-attorney representative to
receive the agreed-upon lump sum payment amount. RAF, Tab 1 at 2-10, Tab 4
at 5-6, 9, 11-12, Tab 5 at 4-5. The agency acknowledges that it has denied the
vendor payment request forms submitted by the appellant’s representative,
asserting that the agreement requires that the appellant execute the vendor
payment request form to receive the lump sum payment, and that the payment
cannot be issued directly to the appellant’s representative. RAF, Tab 3 at 15-18.3
The Board has held that when issues are raised concerning the interpretation of a
settlement agreement that is enforceable by the Board and whether a party has
breached the agreement, such claims are properly addressed in the first instance
by an administrative judge via a petition for enforcement. Secrist v. U.S. Postal
Service, 115 M.S.P.R. 199, ¶ 8 (2010); Henson v. Department of the Treasury,
86 M.S.P.R. 221, ¶ 15 (2000); 5 C.F.R. § 1201.182(a). Accordingly, we forward
the appellant’s allegations of noncompliance to the Western Regional Office for
docketing as a petition for enforcement of the settlement agreement in Lynn II.
ORDER
For the reasons discussed above, we forward the appellant’s compliance
claims to the Western Regional Office for docketing as a petition for enforcement
of the settlement agreement in Lynn II. The September 7, 2023 Final Order
remains the Board’s final decision in this matter. 5 C.F.R. §§ 1201.113(c),
1201.118.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.4 | Lynn_DanielSF-0714-17-0702-R-2_Order.pdf | 2025-03-28 | DANIEL LYNN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-17-0702-R-2, March 28, 2025 | SF-0714-17-0702-I-1; SF-0714-17-0702-R-2 | NP |
22 | https://www.mspb.gov/decisions/nonprecedential/Rosario-Fabregas_Jose_E_NY-0752-18-0221-M-1_NY-0752-13-0142-C-1_NY-0752-13-0142-X-1_NY-0752-10-0127-M-2_NY-0752-10-0127-M-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE E. ROSARIO-FABREGAS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBERS
NY-0752-18-0221-M-1
NY-0752-13-0142-C-1
NY-0752-13-0142-X-1
NY-0752-10-0127-M-2
NY-0752-10-0127-M-1
DATE: March 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jose E. Rosario-Fabregas , San Juan, Puerto Rico, pro se.
Christina Franzese , Esquire, and Elizabeth Vavrica , Esquire, Jacksonville,
Florida, for the agency.
Elizabeth S. Moseley , Esquire, Millington, Tennessee, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has several matters pending before the Board, related to three
different appeals, originally filed in 2010, 2013, and 2018. Rosario-Fabregas v.
Department of the Army, MSPB Docket Nos. NY-0752-10-0127-M-1, NY-0752-
10-0127-M-2, NY-0752-13-0142-C-1, NY-0752-13-0142-X-1, and NY-0752-18-
0221-M-1. For the reasons set forth below, we JOIN these matters and DISMISS
the appeals as settled.2
While these matters have been pending, the parties submitted a document
entitled “NEGOTIATED SETTLEMENT AGREEMENT,” signed by the appellant
and the agency’s representative on February 26, 2025, and further signed by
another agency official on March 5, 2025. The document provides, among other
things, for the dismissal of the appeals.
Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service, 37 M.S.P.R. 146,
149 (1988). In addition, before accepting a settlement agreement into the record
for enforcement purposes, the Board must determine whether the agreement is
lawful on its face and whether the parties freely entered into it. See Delorme v.
Department of the Interior, 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ).
Here, we find that the parties have entered into a global settlement
agreement, understand its terms, and intend for the agreement to be entered into
the record for enforcement by the Board. E.g., Rosario-Fabregas v. Department
of the Army, MSPB Docket No. NY-0752-18-0221-M-1, Remand File (0221 RF),
Tab 15 at 10. Accordingly, we find that dismissing the appeals with prejudice to
refiling (i.e., the parties normally may not refile this appeal) is appropriate under
these circumstances. In addition, we find that the agreement is lawful on its face
2 Joining these appeals and issuing a single decision will expedite the Board’s
processing and will not prejudice either party. 5 C.F.R. § 1201.36(b). 2
and freely entered into, and we accept the settlement agreement into the record
for enforcement purposes.3
This is the final decision of the Merit Systems Protection Board in these
appeals. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182(a).
NOTICE OF APPEAL 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
3 The settlement agreement requires that the agency ask the Board to issue a subpoena
to the Social Security Administration, concerning the appellant’s Social Security and
Medicare allocations. E.g., 0221 RF, Tab 15 at 8. Attached to the settlement agreement
submitted to the Board, the agency has made this request. E.g., id. at 13-16. We deny
the subpoena request. Among other things, the materials sought do not appear to be
relevant to the matters set for the Board to decide. See 5 C.F.R. § 1201.81(c). Plus, we
do not find it appropriate to issue a subpoena in connection with appeals that are, at the
same time, being dismissed, thus removing them from the Board’s docket of pending
cases. See 5 C.F.R. § 1201.71 (“Discovery is designed to enable a party to obtain
relevant information needed to prepare the party’s case.”)
4 Since the issuance of earlier decisions in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | Rosario-Fabregas_Jose_E_NY-0752-18-0221-M-1_NY-0752-13-0142-C-1_NY-0752-13-0142-X-1_NY-0752-10-0127-M-2_NY-0752-10-0127-M-1_Final_Order.pdf | 2025-03-28 | null | NY-0752-18-0221-M-1; NY-0752-13-0142-C-1; NY-0752-13-0142-X-1; NY-0752-10-0127-M-2; NY-0752-10-0127-M-1 | NP |
23 | https://www.mspb.gov/decisions/nonprecedential/Jones_AnthonyDE-0752-21-0269-C-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY JONES,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-21-0269-C-1
DATE: March 28, 2025
THIS ORDER IS NONPRECEDENTIAL1
Anthony Jones , Jonesboro, Arkansas, pro se.
Richard Wolfe , David L. Miller , and Leatrice Reason Taylor , Esquire,
Fort Huachuca, Arizona, for the agency
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
ORDER
The appellant has filed a petition for review of the compliance initial
decision, which challenged the administrative judge’s decision that he was not
entitled to back pay because he was not ready, willing, and able to work between
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
his removal and interim reinstatement at the agency and that his incapacity was not
caused by his removal. On petition for review, the appellant argues that he is
entitled to back pay and that his appeal should be reassigned from the
administrative judge. Generally, we grant petitions such as this one only in the
following circumstances: the compliance initial decision contains erroneous
findings of material fact; the compliance initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to the
facts of the case; the administrative judge’s rulings during either the course of the
appeal or the compliance initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
compliance petition for review. Therefore, we DENY the compliance petition for
review and AFFIRM the compliance initial decision.
However, this order does not constitute a final order as to MSPB Docket No.
DE-0752-21-0269-C-1, and it is therefore not subject to judicial review under
5 U.S.C. § 7703(a)(1) regarding that matter. Some issues raised in the appellant’s
petition for enforcement are being addressed separately in a compliance referral
matter, under MSPB Docket No. DE-0752-21-0269-X-1. Upon final disposition of
the compliance referral, a final order shall be issued in MSPB Docket Nos.2
DE-0752-21-0269-C-1 and DE-0752-21-0269-X-1, which shall be subject to
judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.3 | Jones_AnthonyDE-0752-21-0269-C-1_Order.pdf | 2025-03-28 | ANTHONY JONES v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-21-0269-C-1, March 28, 2025 | DE-0752-21-0269-C-1 | NP |
24 | https://www.mspb.gov/decisions/nonprecedential/Schrock_LaDonnaDE-0714-20-0053-I-1__Remand Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LADONNA SCHROCK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0714-20-0053-I-1
DATE: March 27, 2025
THIS ORDER IS NONPRECEDENTIAL1
Jesse L. Kelly II , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Aleksander D. Radich , Esquire, Cheyenne, Wyoming, for the agency.
Brandi M. Powell , Esquire, New Orleans, Louisiana, for the agency.
Emily Huang , Esquire, Houston, Texas, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal under the provisions of 38 U.S.C. § 714. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Denver Field Office for further
adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the agency proved its charge
by substantial evidence.
Under 38 U.S.C. § 714, the Board reviews an agency’s charge under a
substantial evidence standard. 38 U.S.C. § 714(d)(2)(A), (3)(B); Rodriguez v.
Department of Veterans Affairs , 8 F.4th 1290, 1297-98 (Fed. Cir. 2021).
Substantial evidence is “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other reasonable persons might disagree.” 5 C.F.R.
§ 1201.4(p). It is a lower standard of proof than preponderant evidence. Id. The
sole charge in the notice of proposed removal was for violation of the
Professional Boundaries and Ethical Conduct Policy Memorandum, 00-18-04,
with four specifications. Initial Appeal File (IAF), Tab 4 at 22-23. After making
credibility determinations, the administrative judge found that the agency proved
all four specifications, and the charge, by substantial evidence. IAF, Tab 15,
Initial Decision (ID) at 4-13. We discern no basis for disturbing these findings on
review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding
no reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on issues of credibility); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).2
We remand the appeal for the administrative judge to provide the parties with an
opportunity to present evidence regarding whether the agency’s error in
reviewing the proposed removal for substantial evidence was harmful.
The agency’s deciding official applied the substantial evidence standard in
reviewing the removal action. IAF, Tab 4 at 16. Specifically, in the decision
letter, the deciding official concluded that the charge “was supported by
substantial evidence.” Id. After the initial decision in this case was issued, the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided
Rodriguez, 8 F.4th at 1296-1301, in which it determined that the agency erred by
applying a substantial evidence burden of proof to its internal review of a
disciplinary action under 38 U.S.C. § 714. The court found that substantial
evidence is the standard of review to be applied by the Board, not the agency. Id.
at 1298-1300. Instead, the agency’s deciding official must use a preponderance
of the evidence burden of proof to “determine[]” whether “the performance or
misconduct . . . warrants” the action at issue. Id. at 1298-1301 (quoting
38 U.S.C. § 714(a)(1)). The holding in Rodriguez applies to all cases pending
with the Board, regardless of when the events at issue took place. Semenov v.
Department of Veterans Affairs , 2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of
Rodriguez and therefore were unable to address its impact on the appeal. We
therefore must remand this case for adjudication of whether the agency’s
application of the substantial evidence standard of proof was harmful error. See
Semenov, 2023 MSPB 16, ¶ 22. A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
different conclusion from the one it would have reached in the absence or cure of
the error. Id., ¶ 23; 5 C.F.R. § 1201.4(r). The appellant bears the burden of
proving her affirmative defenses by preponderant evidence. Semenov,
2023 MSPB 16, ¶ 23; 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the
administrative judge shall provide the parties with an opportunity to present3
evidence and argument, including holding a supplemental hearing addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Semenov, 2023 MSPB 16, ¶ 24. The
administrative judge should approve the deciding official to testify on this issue if
requested by either party. 5 C.F.R. § 1201.41(b)(8), (10) (recognizing the
authority of administrative judges to rule on, and order the appearance of,
witnesses). The administrative judge should then address this affirmative defense
in the remand initial decision.
On remand, the administrative judge should apply the factors in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) and review the agency’s
penalty selection.
The administrative judge did not consider whether the penalty in this case
was reasonable because she found that 38 U.S.C. § 714(d)(2)(B) prohibits an
administrative judge from mitigating the agency-selected penalty. ID at 4. After
the initial decision was issued in this case, the Federal Circuit issued its decision
in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021). In
Connor, the Federal Circuit determined that the agency and the Board must
consider and apply the Douglas factors in selecting and reviewing the penalty
under 38 U.S.C. § 714. Connor, 8 F.4th at 1325-26; see Semenov,
2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s
decision in Connor, 8 F.4th at 1325-26, the agency and the Board must apply the
Douglas factors in reviewing the penalty in an action taken under 38 U.S.C.
§ 714).
The administrative judge and the parties did not have the benefit of Connor
and thus were unable to address its impact on this appeal. Therefore, remand is
also required regarding this issue. Connor, 8 F.4th at 1326-27. On remand, the
administrative judge should permit the parties to submit additional evidence and
argument on the penalty issue, to include holding a supplemental hearing on the
penalty issue at which the deciding official is permitted to testify, if requested.4
See Semenov, 2023 MSPB 16, ¶ 50. In reviewing the penalty, the administrative
judge should determine whether the agency proved by substantial evidence that it
properly applied the relevant Douglas factors and whether the agency’s penalty
selection was reasonable and, if not, remand the appellant’s removal to the
agency for a new removal decision.2
Regarding the appellant’s affirmative defense of whistleblower reprisal, the
administrative judge may adopt her prior findings on this issue on remand, if
appropriate. However, evidence regarding the penalty may be relevant to one or
more of the factors set forth in Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999). The administrative judge should therefore
reconsider this affirmative defense after all the other issues.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
2 If the penalty is remanded to the agency, the agency should be mindful of its
obligations to provide the appellant with the necessary due process. See Brenner v.
Department of Veterans Affairs , 990 F.3d 1313, 1324 (Fed. Cir. 2021) (observing that
the VA Accountability Act maintains due process protections for employees); Ward v.
U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368, 1375-77 (Fed. Cir. 1999). Further, if remanding
the penalty, the administrative judge should consider dismissing the appeal without
prejudice during the remand period.5 | Schrock_LaDonnaDE-0714-20-0053-I-1__Remand Order.pdf | 2025-03-27 | LADONNA SCHROCK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0714-20-0053-I-1, March 27, 2025 | DE-0714-20-0053-I-1 | NP |
25 | https://www.mspb.gov/decisions/nonprecedential/Newhouse_CarlSF-0752-23-0400-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL NEWHOUSE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-23-0400-I-1
DATE: March 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wayne Perryman , Mercer Island, Washington, for the appellant.
Benjamin Signer , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that 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
was not a qualified individual with a disability and to supplement the analysis of
his intolerable working conditions claim, we AFFIRM the initial decision.
BACKGROUND
The appellant was a GS-12 Community Support Coordinator (CSC)
assigned to the 62d Airlift Wing at the agency’s Lewis -McChord Air Force Base
in Pierce, Washington. Initial Appeal Tab (IAF), Tab 7 at 11. The purpose of his
position was to analyze and evaluate issues on the Base relating to individual,
family, and community resilience and individual preparedness. IAF, Tab 22 at 5.
His major responsibilities included heading up “resilience efforts,” i.e., “mental,
physical, social, and spiritual fitness initiatives, programs, and activities” on the
Base, including serving as the Community Action Board (CAB) Executive
Director. Id. at 5-6. In these various capacities he was responsible for analyzing
issues, such as quality of life on base, formulating long -term solutions, and then
implementing those solutions via community outreach and prevention programs
on Base. Id. at 5. He was also responsible for developing the bi -annual
Community Action Plan (CAP), orchestrating quarterly CAB meetings and all
supporting activities leading to and following meetings, “monitoring and
overseeing the “use of authorized [CAB] funds” and resilience programs, and
Wingman Days. Id.2
In March 2021, the 62d Airlift Wing’s Director of Staff advised the
appellant and his coworkers that the agency planned to return employees to work
following its full telework policy initiated at the beginning of the COVID -19
pandemic. IAF, Tab 18 at 6, Tab 25 at 6-7. The appellant responded to his
supervisor that he was at risk of complications from COVID -19 due to his
underlying conditions of obesity and diabetes, and that under the agency’s
guidance he was a “vulnerable individual” who should “shelter in place.” IAF,
Tab 25 at 5.
The appellant then had a period of absence in May and June 2021 due to a
COVID infection and pneumonia. IAF, Tab 4 at 23 -24, Tab 12 at 92. He initially
sought and was granted Family and Medical Leave (FMLA) -protected leave
through September 2021. IAF, Tab 4 at 6; Tab 12 at 104. The appellant returned
to working partial days while still using FMLA -protected leave, but it is unclear
if his work was done from the office or from home at that time. IAF, Tab 4 at 6,
Tab 12 at 60, 104.
He advised the agency on September 29, 2021, that he was unable to
perform “additional catch all” responsibilities in 4 hours of work per day without
it being a detriment to his health. IAF, Tab 4 at 6. He submitted doctor’s notes
in October and November 2021, indicating that he required a variety of
reasonable accommodations for ongoing medical conditions, including syncope.
IAF, Tab 12 at 26-29, Tab 13 at 31. In particular, he requested to work half of
his days (4 hours) in the office and the other half (4 hours) at home, i.e.,
50% telework. IAF, Tab 12 at 28, 30. The agency’s Disability Program Manager
denied his request on December 9, 2021, asserting that the appellant needed to be
in the office full -time for in-person interactions. Id. at 33. The agency offered
him the alternative accommodation of working 2 half days at home and 3 full
days in the office, i.e., 20% telework. Id. at 34. The appellant began working
under this schedule on December 20, 2021. Id. at 83, 87.3
After the appellant’s supervisor met with him to discuss his schedule,
performance, and other matters, the appellant sought Equal Employment
Opportunity (EEO) counseling on January 24, 2022, but his concerns were not
resolved during the informal process. IAF, Tab 1 at 15, Tab 4 at 30-32, Tab 19
at 4-5. On February 26, 2022, the agency advised the appellant of his right to file
a formal EEO complaint. IAF, Tab 11 at 38. He resigned the same day, effective
March 12, 2022, claiming that he was subjected to discrimination and harassment
that exacerbated a mental health condition (PTSD). IAF, Tab 1 at 14-15, 20-24,
Tab 12 at 35.
The appellant filed a formal complaint of discrimination on March 6, 2022,
which included a constructive removal claim. IAF, Tab 1 at 14-15, Tab 7 at 10.
On May 12, 2023, the agency issued a Final Agency Decision (FAD) on the
appellant’s EEO complaint finding no discrimination, and the appellant timely
filed the instant appeal. IAF, Tab 1 at 14, 24-26. The administrative judge found
that the appellant had made nonfrivolous allegations sufficient to warrant a
jurisdictional hearing on his involuntary resignation claim. IAF, Tab 9 at 2-5.
The appellant later withdrew his request for a hearing, and the case was decided
on the written record. IAF, Tab 1 at 2, Tab 16 at 4.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 38, Initial Decision (ID) at 1, 19. She was not
persuaded by the appellant’s arguments that the agency improperly denied him
his requested reasonable accommodation. ID at 14-18. She credited the
declaration of the appellant’s first -level supervisor that 5 half days per week of
telework was inconsistent with the appellant’s essential duties and that other
employees had been required to fulfill his duties when he teleworked in the past.
ID at 15-16. The administrative judge was not convinced by the appellant’s
argument that the fact that the agency had 100% telework due to the pandemic
demonstrated that he could perform his duties remotely full -time. ID at 16-17.
The administrative judge also concluded that the appellant’s work assignments4
and the agency’s handling of his reasonable accommodation request did not create
intolerable working conditions that would cause a reasonable person to feel he
had no choice but to resign. ID at 18-19.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response to the petition for review, to which the
appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant did not prove by a
preponderance of the evidence that his resignation was involuntary due to the
agency’s denial of his requested reasonable accommodation or due to intolerable
working conditions. ID at 14, 19. The appellant disputes both of these findings
on review.2 PFR File, Tabs 1, 4.
An employee-initiated action, such as a resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction, unless the employee presents
sufficient evidence to establish that the action was obtained through duress or
coercion or show that a reasonable person would have been misled by the agency.
Searcy v. Department of Commerce , 114 M.S.P.R. 281, ¶ 12 (2010) (citing Staats
v. U.S. Postal Service , 99 F.3d 1120, 1123 -24 (Fed. Cir. 1996)). The appellant
here has not alleged that his resignation resulted from agency misinformation.
Rather, he has argued that he resigned due to the denial of his reasonable
2 The appellant also argues on review that the agency did not submit the prior
teleworking agreement into the record and appears to assert that the administrative
judge should have required the agency to submit evidence that the CSC position could
not be “duplicated in a teleworking environment.” PFR File, Tab 1 at 9-10. The
appellant’s arguments provide no basis to disturb the initial decision. As discussed
below, the appellant, not the agency, bears the burden of proof. Further, the appellant
submitted the telework agreement into the record below, and it was considered by the
administrative judge. IAF, Tab 18; ID at 2; see McIntire v. Federal Emergency
Management Agency , 55 M.S.P.R. 578, 584-85 (1992) (concluding that, even if an
administrative judge erred in drawing an adverse inference against a party, the error did
not impact the Board’s decision and therefore did not warrant reversal of the initial
decision).5
accommodation request and a hostile work environment. A resignation may be
rendered involuntary by the agency’s improper denial of an employee’s request
for reasonable accommodation. See Hosozawa v. Department of Veterans Affairs ,
113 M.S.P.R. 110, ¶ 7 (2010); Williams v. Department of Agriculture ,
106 M.S.P.R. 677, ¶ 13 (2007). A resignation may also be rendered involuntary
due to intolerable working conditions that made it so difficult that a reasonable
person in that employee’s position would have felt compelled to resign. Brown v.
U.S. Postal Service , 115 M.S.P.R. 609, ¶ 10 (2011), aff’d per curiam , 469 F.
App’x 852 (Fed. Cir. 2011).
We modify the initial decision to find that the appellant did not prove that he
could perform the essential functions of the CSC position with or without
reasonable accommodation.
The administrative judge found that the appellant did not prove that the
agency’s denial of his request to telework 50% of the time rendered his
resignation involuntary. ID at 14-18. In doing so, she reasoned that the agency
engaged in an interactive process with the appellant to find an alternative and
effective accommodation to teleworking 4 hours per day. Id. In reaching those
findings, the administrative judge concluded that the appellant did not prove that
he was unable to perform his essential functions with the provided
accommodation. We disagree. ID at 17-18. However, for the reasons explained
below, we find that remand is unnecessary because the record on this issue is
fully developed. See, e.g., Forte v. Department of the Navy , 123 M.S.P.R. 124,
¶ 27 (2016) (deciding an appellant’s claim of status -based discrimination on
review, rather than remanding, when the administrative judge applied an incorrect
standard but the record was fully developed). We modify the initial decision to
find that the appellant did not prove that he was a qualified individual with a
disability.6
Because he did not prove he was a qualified individual with a
disability, the appellant also did not prove that the agency
improperly denied his reasonable accommodation request.
To prove that his resignation amounted to a constructive removal, the
appellant must show that (1) he lacked a meaningful choice in the matter, and
(2) it was the agency’s wrongful actions that deprived him of that choice. Bean v.
U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 8, 11 (2013). The appellant reasserts
on review that his resignation was the result of the agency’s wrongful denial of
reasonable accommodation. PFR File, Tab 1 at 5-8.
To prevail on a claim that the agency denied him a reasonable
accommodation, an appellant must prove that he is a qualified individual with a
disability, meaning that he can “perform the essential functions” of his position or
one he desires with or without reasonable accommodation. 42 U.S.C.
§§ 12111(8), 12112(b)(5); Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 28. As discussed below, based on the appellant’s own
statements and other record evidence, we conclude that the appellant did not
prove that he was a qualified individual with a disability because he did not meet
the essential functions of his position with or without accommodation.
On review, the appellant continues to argue that his ability to telework
during the pandemic is proof that in -person interaction was not required to
complete the essential functions of his position. PFR File, Tab 1 at 9-10.
Because we conclude that the appellant did not prove that he could perform the
essential duties of his position even with the accommodation he requested, we
need not reach the issue of whether in -person interaction was necessary to fulfill
those duties. We modify the initial decision to the extent that the administrative
judge found that “the appellant offer[ed] no evidence to suggest that he was
unable to complete the essential function of his job with the accommodation he
was granted.” ID at 17-18. Because the appellant failed to prove he was a7
qualified individual with a disability, he also failed to prove that the agency’s
alleged denial of his reasonable accommodation request was wrongful.
By October 2021, the appellant had exhausted his FMLA -protected leave.
IAF, Tab 12 at 30. That month, he advised the agency’s Disability Program
Manager that his medical condition of syncope negatively impacted “cognitive
processes,” which in turn affected his work. Id. In November 2021, the appellant
indicated to his first-level supervisor that he had been unable to comprehend or
respond to his supervisor the prior day due to his health issues. IAF, Tab 13
at 31. He indicated that this difficulty “occur[red] sporadically.” Id. In
December 2021, in denying the appellant’s request for 50% telework, the agency
noted that situational telework remained available to the appellant. IAF, Tab 12
at 33-34; PFR File, Tab 3 at 6.
Later that month, when the Director of Staff noted to the appellant errors in
his draft of the CAP, the appellant responded that he could not “dictate when
[his] body (health) goes south.” IAF, Tab 12 at 52, 83-84. He advised the
Director of Staff that “if [he] need[ed] to exit the office early on any day to
ensure the health safety for [him]self and others,” he would continue to do so as
he had “been doing since learning of the [reasonable accommodation] decision”
earlier that month. Id. at 83.
Also in December 2021, the appellant’s first -level supervisor received
feedback from an agency employee that the appellant was “being overly
demanding and inconsiderate of others’ time and priorities” in his email
communications. Id. at 49. This report was consistent with an EEO complaint
from a coworker alleging that the appellant mistreated her in June 2021. Id.
at 49, 134. To address these concerns and “some recent shortfalls in the CSC
“primary duties and responsibilities,” including a recent late Community Action
Plan submittal and a lackluster Wingman Day,” the appellant’s first -level
supervisor and the Command Chief met with the appellant in January 2024. IAF,
Tab 4 at 31, Tab 12 at 44-45, 52-53. Leading up to these performance8
deficiencies, other agency staff performed tasks that the appellant was unable to
complete as a result of his medical condition, including completing the annual
CAP, teaching a First Time Airmen Class, assisting with purchases, and carrying
out Wingman Days. IAF, Tab 12 at 95. On February 7, 2022, the appellant’s
first-level supervisor provided the appellant with a written summary of the
January 2024 meeting. IAF, Tab 4 at 30-32.
Three days later, on February 10, 2022, the appellant responded in writing
to his supervisor’s summary of their January 2021 meeting. IAF, Tab 19 at 4-5.
He agreed that he was responsible for Wingman Days and the CAP. Id. at 5. He
acknowledged failures in these programs and blamed staff assigned to assist him
and the fact that he “was unable to control factors . . . while ill and out of the
office.” Id. Then, on March 5, 2022, the appellant signed a Standard Form 52,
Request for Personnel Action, stating that he had no choice but to resign due to
his “intolerable working conditions . . . harmfully impacting [his] impaired
physical health condition and [his] mental status.” IAF, Tab 1 at 9. According to
the appellant, his “very wellbeing physical and mental . . . require[d] that [he]
resign.” Id.
The appellant bears the burden of showing by a preponderance of the
evidence that his resignation was involuntary and therefore tantamount to a
forced removal. Freeborn v. Department of Justice , 119 M.S.P.R. 290, ¶ 9
(2013). An agency is not required to excuse an employee from performing his
essential job functions as a reasonable accommodation. Jewell v. Department of
the Interior, EEOC Appeal No. 0120120023, 2015 WL 3955101, at *2 (June 9,
2015). As outlined above, between October 2021 and his resignation in
March 2022, the appellant indicated that his health issues prevented him from
understanding and responding to his supervisor and performing essential job
duties such as submitting an adequate CAP and hosting Wingman Days. He was
unable to fulfill these requirements even when the agency assigned others to9
assist him with his work. The appellant has not alleged that he was denied ad hoc
telework or leave during this period.
The appellant also has not asserted that he requested reassignment, and did
not identify a vacant funded position that he believes he could perform. See
Rosario-Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 18 (2015)
(indicating that an appellant failed to engage in the interactive process when, as
relevant here, he did not identify any vacant, funded position to which the agency
might have reassigned him), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). Instead, he
resigned. Therefore, we agree with the administrative judge’s finding that the
appellant did not prove his claim that a denial of accommodation forced him to
resign, but we modify her reasoning as discussed above to find that he failed to
prove he was qualified.
In light of this finding, we do not reach the appellant’s argument that the
agency did not address his requested accommodations beyond his request for
telework, failed to engage in the interactive process at various points between
October 2021 and January 2022, and should have obtained additional medical
information directly from his providers. PFR File, Tab 1 at 4-5, Tab 4 at 6.3 We
also need not decide here whether, as argued by the appellant, the administrative
judge was mistaken in stating that the appellant provided no evidence that he was
diagnosed with post-traumatic stress disorder. ID at 9 n.4; PFR File, Tab 1
at 8-9. Regardless, because the appellant did not prove he was entitled to
3 We disagree with the agency’s position below that it held no responsibility to address
the appellant’s commuting needs. IAF, Tab 12 at 8, 34. A request for telecommuting
or a shorter commuting time because of a disability triggers an agency’s responsibility
to engage in the interactive process under the Rehabilitation Act. Barney G. v. Social
Security Administration , EEOC Appeal No. 2021000802, 2022 WL 4546523, at *8 n.6
(Sept. 12, 2022); Jones v. Department of Agriculture , EEOC Appeal No. 0120080833,
2012 WL 3059918, *5 (July 18, 2012). However, even if the appellant’s requested
accommodation was granted, i.e., to telework 4 hours a day, 5 days a week, he would
still need to commute 5 days a week. IAF, Tab 12 at 33-34. In addition, as noted
above, the agency stated in its decision on his reasonable accommodation request that it
would continue to permit the appellant to use situational telework. IAF, Tab 12 at 12,
30, 33-34; PFR File, Tab 3 at 6, Tab 4 at 4-5.10
reasonable accommodation, we find that the agency did not constructively remove
him.
We affirm as supplemented the administrative judge’s finding that the appellant
did not prove by a preponderance of the evidence that his resignation was
involuntary based on a claim of intolerable working conditions.
The administrative judge briefly addressed the appellant’s intolerable
working conditions claim. ID at 18-19. We supplement her analysis but still find
that the appellant did not prove this claim. When alleging involuntary resignation
due to a hostile work environment, the appellant must demonstrate that the
employer engaged in a course of action that made working conditions so difficult
or unpleasant that a reasonable person in his position would have felt compelled
to resign. Vaughan v. Department of Agriculture , 116 M.S.P.R.493, ¶ 11 (2011).
The Board addresses allegations of discrimination in connection with an alleged
involuntary retirement only insofar as those allegations relate to the issue of
voluntariness. Markon v. Department of State , 71 M.S.P.R. 574, 578 (1996).
On review, the appellant realleges that the agency harassed him by
assigning him additional duties normally performed by the Violence Prevention
Integrator (VPI) and criticizing his job performance despite its awareness of his
medical condition. PFR File, Tab 1 at 7, 13-14, Tab 4 at 5-6. He argues that
“being unresponsive to a disabled employee’s health challenges while increasing
the disabled worker’s workload is a form of harassment and often used by
employers to pressure the disabled employee into resigning.” PFR File, Tab 1
at 7-8. The agency disagrees and argues that the appellant only had to perform
one task for the acting VPI. PFR File, Tab 3 at 7-8.
Dissatisfaction with work assignments, a feeling of being unfairly
criticized, and difficult or unpleasant working conditions are generally not so
intolerable as to compel a reasonable person to resign. Brown, 115 M.S.P.R. 609,
¶ 15; Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000). The
appellant has only identified one event to which he was assigned related to the11
VPI position. IAF, Tab 31 at 6. The VPI position became vacant in August 2021,
the record reflects that a sergeant was assigned the VPI duties from August 2021
through June 2022, with the appellant serving as a subject matter mentor as
needed. IAF, Tab 12 at 43, 54, 94, 98-101, 110, 134-35. After the prior VPI
resigned in August 2021, the task of making “a single purchase” related to a
pending event fell to the appellant because he was the sole administrator of the
account with the designated funds. IAF, Tab 12 at 43, 46, Tab 31 at 6. The
record reflects that in September 2021, the appellant emailed his supervisor
stating that “all VPI purchases were completed this morning.” IAF, Tab 12 at 82,
139-142.
The appellant has not alleged that he was required to complete any other
VPI assignments. Therefore, we do not find that the alleged intolerable working
condition, an additional assignment completed in September 2021, would have
caused a reasonable person to resign effective March of the following year. See
Searcy, 114 M.S.P.R. 281, ¶ 13 (finding that the 5 -month lapse of time between
when an appellant initially raised a hostile work environment claim in an EEO
complaint and his resignation undercuts his assertion that his working conditions
were so intolerable as to have compelled his resignation).
Regarding the appellant’s concern that he could have faced possible future
disciplinary action, at the time of his resignation there was no discipline pending
against him. IAF, Tab 31 at 10; PFR File, Tab 1 at 11, Tab 4 at 8. To prove a
constructive discharge, an employee has an obligation to act reasonably, not
assume the worst, and not jump to conclusions too quickly. Miller, 85 M.S.P.R.
310, ¶ 29; see Staats, 99 F.3d at 1124 (concluding that the choice between “two
unattractive options” does not render a decision to retire or resign involuntary).
We are not persuaded by the appellant’s argument that he was concerned about
facing possible discipline due to his performance issues.4 PFR File, Tab 1 at 11.
4 The appellant also frames this argument as an affirmative defense, arguing that his
first-line supervisor violated the collective bargaining agreement when he conducted the12
Rather, we find that this was an instance of jumping to conclusions and resigning
preemptively. See Schultz v. U.S. Navy , 810 F.2d 1133, 1136 (Fed. Cir. 1987)
(“[W]here an employee is faced merely with the unpleasant alternatives of
resigning or being subject to removal for cause, such limited choices do not make
the resulting resignation an involuntary act.”). Thus, this argument does not
provide a basis for disturbing the initial decision and does not establish that his
resignation was involuntary.
Accordingly, we agree with the administrative judge’s findings, as
modified and supplemented above, that the appellant failed to prove that his
resignation was involuntary.
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
January 24, 2022 meeting without his union representative present. PFR File, Tab 1
at 11. However, in the absence of an otherwise appealable action, the Board lacks
jurisdiction over claims of harmful error, prohibited personnel practices, and the
agency’s failure to comply with regulations. Penna v. U.S. Postal Service ,
118 M.S.P.R. 355, ¶ 13 (2012); see also Wren v. Department of the Army , 2 M.S.P.R. 1,
2 (1980), aff’d, 681 F.2d 867 (D.C. Cir. 1982). Because the administrative judge
dismissed this appeal for lack of jurisdiction, we do not separately have jurisdiction
over the appellant’s claim that the agency violated the collective bargaining agreement.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 14
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 15
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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. 1510.16
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Newhouse_CarlSF-0752-23-0400-I-1_Final_Order.pdf | 2025-03-27 | CARL NEWHOUSE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-23-0400-I-1, March 27, 2025 | SF-0752-23-0400-I-1 | NP |
26 | https://www.mspb.gov/decisions/nonprecedential/Santos_Jahil_F_AT-0752-20-0219-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAHIL FRANCISCO SANTOS,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0752-20-0219-I-2
DATE: March 27, 2025
Catherine Cullen , Esquire, and Mark A. Cullen , Esquire, West Palm Beach,
Florida, for the appellant.
Christian Lewerenz , Jamaica, New York, for the agency.
Stephanie A. Kevil , Des Plaines, Illinois, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
Vice Chairman Kerner issues a separate opinion.
Member Harris issues a separate opinion.
ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. The two Board members cannot agree on the disposition of
the petition for review. Therefore, the initial decision now becomes the final
decision of the Merit Systems Protection Board in this appeal. Title 5 of the
Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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
SEPARATE OPINION OF HENRY J. KERNER
in
Jahil Francisco Santos v. Department of Transportation
MSPB Docket No. AT-0752-20-0219-I-2
For the reasons set forth below, I would deny the appellant’s petition for
review and affirm the initial decision.
As Member Harris notes in her separate opinion, the facts of this case are
largely undisputed. In September 2016, the agency issued a decision to remove the
appellant from his position as an Air Traffic Control Specialist after his random
drug test came back positive for cocaine. Santos v. Department of Transportation ,
MSPB Docket No. AT-0752-20-0219-I-1, Initial Appeal File (IAF), Tab 4 at 40-43,
Tab 5 at 4. However, because the appellant agreed to enter the agency’s Treatment
Rehabilitation Plan (TRP), the deciding official agreed to hold the implementation
of the removal “in abeyance pending successful completion of all the terms and
conditions in the TRP.” IAF, Tab 4 at 41 (emphasis added). For his part, the
appellant agreed to, among other things, attend intensive out-patient treatment for a
minimum of a year, as well as “totally abstain” from the use of any illegal drugs or
any alcohol, either on- or off-duty, while occupying a Testing Designated Position
for the duration of his employment with the agency. Id. at 46-53. The appellant
successfully completed the rehabilitation portion of the TRP in October 2017, but a
year later, tested positive for alcohol use. Id. at 32, 35, 39. The agency then issued
the appellant an Implementation of Removal, explaining that it was effectuating the
2016 removal because the positive test violated the terms of the TRP. Id. at 15-16.
The outcome of this case turns on the interpretation of the TRP, namely,
whether the abstinence requirement—i.e., the requirement to “totally abstain” from
drugs and alcohol—was a term and condition of the TRP. In construing the terms
of the TRP agreement, the Board examines the four corners of the agreement to
determine the parties’ intent. Allen v. Department of Veterans Affairs ,
112 M.S.P.R. 659, ¶ 17 (2009). The contract provisions must be read as “part of an
organic whole, according reasonable meaning to all of the contract terms” to
identify and give weight to the “spirit” or essence of the contract as intended by the
parties. Id. (citations omitted).
Reviewing the four corners of the TRP, I discern no basis to sever any of the
23 enumerated terms and conditions, including the abstinence requirement, from
the TRP. All 23 enumerated provisions have a similar structure, specifically, they
use the first-person narrative and make affirmative statements as to the appellant’s
responsibilities while under the TRP. IAF, Tab 4 at 47-53. Furthermore,
immediately following the list of 23 conditions, there is the signature and
attestation section, which is signed by the appellant and confirms that he accepts
the agency’s TRP offer, he understands that “failure to abide with any condition of
[his TRP] will result in a determination of non-compliance and a referral to
management for further action,” and “compliance means a strict adherence to all
elements of the [TRP].” Id. at 53. The appellant admitted as much to the agency.
Santos v. Department of Transportation , MSPB Docket No. AT-0752-20-0219-I-2,
Appeal File (I-2 AF), Tab 15 at 4, 6.
Additionally, the agency informed the appellant multiple times, including
after he completed the out-patient rehabilitation program, that any future relapses,
positive tests, or incidents of substance abuse/misuse would result in the
implementation of the sustained removal. Id. at 39, 41, 53. Therefore, as the
administrative judge found, the evidence suggests that the appellant understood
that violating the abstinence requirement would violate the TRP and result in the
effectuation of his removal. I-2 AF, Tab 24, Initial Decision (ID) at 11. Stated
another way, the “spirit” or essence of the TRP, as intended by both parties, is that
the abstinence requirement is a term and condition of the TRP. Therefore, I agree
with the administrative judge that the agency proved that the appellant violated the2
TRP as alleged in the implementation notice, and the agency properly effectuated
the appellant’s 2016 removal. ID at 13.
I also note that the agency including an ongoing abstinence requirement as a
term and condition of the TRP is not unreasonable in light of the appellant’s
position as an Air Traffic Controller. Because the appellant’s job duties directly
relate to public health and safety, he is responsible for the lives of thousands of
people while on duty. Therefore, the appellant’s previous history of abusing
substances and inability to abstain from the use of substances, even when off-duty,
has a direct impact on public safety. The appellant understood that his employment
hinged on his ability to refrain from substance use and was ultimately unable to
abstain. Accordingly, I would affirm the initial decision sustaining the agency’s
effectuation of the 2016 removal.
_____________________________
Henry J. Kerner
Vice Chairman3
SEPARATE OPINION OF CATHY A. HARRIS
in
Jahil Francisco Santos v. Department of Transportation
MSPB Docket No. AT-0752-20-0219-I-2
For the following reasons, I would grant the appellant’s petition for review,
reverse the initial decision, and not sustain the removal action.
BACKGROUND
The material facts of this case are undisputed. The appellant was an Air
Traffic Control Specialist for the agency’s Federal Aviation Administration (FAA).
Santos v. Department of Transportatio n, MSPB Docket No. AT-0752-20-0219-I-1,
Initial Appeal File (IAF), Tab 5 at 11-12. Air Traffic Control Specialist is an
alcohol and drug testing-designated position, meaning that the appellant was
required to abstain from alcohol for at least 8 hours prior to each tour of duty, to
abstain from illegal drugs entirely, and was subject to random testing. Id. at 15, 95,
149, 152, 162.
On June 26, 2016, the appellant submitted to a random drug test, which came
back positive for cocaine metabolites. Id. at 6-9. On July 25, 2016, the agency
proposed the appellant’s removal based on a charge of “Positive Drug Test.” IAF,
Tab 5 at 4-5. The proposal notice stated, “In light of the charge listed above, you
are eligible for a one-time opportunity for participation in an FAA-[Employee
Assistance Program] approved and monitored Treatment Rehabilitation Plan
(TRP),” and “[y]our willingness to participate in a TRP will be favorably
considered when issuing my decision.” Id. at 5.
The appellant elected to participate in the TRP. IAF, Tab 5 at 46-54. On
September 21, 2016, the deciding official issued a decision in which he determined
that the charge was supported by the evidence and that it warranted the appellant’s
removal. IAF, Tab 4 at 40-41. However, the decision letter also stated, “Since you
have accepted the offer of a TRP . . . I will hold the implementation of your
removal in abeyance pending successful completion of all the terms and conditions
in the TRP.”1 Id. at 41. On October 27, 2017, the agency sent the appellant a letter
of congratulations, informing him that he had successfully completed the TRP, but
warning him that any future relapse, positive test, or confirmation of substance
abuse or misuse would subject him to removal. Id. at 39.
A year later, on October 16, 2018, the appellant submitted to another test,
which came back positive for alcohol. Id. at 34-35. Effective December 20, 2019,
the agency implemented its September 21, 2016 removal decision on the basis that
the appellant was non-compliant with his TRP. Id. at 14-18. Specifically, the
agency found that, when he entered the TRP, the appellant agreed that he would
completely abstain from alcohol as long as he was employed in a testing-designated
position, and it was undisputed that the appellant had violated that agreement. Id.
at 15-16.
The appellant filed a Board appeal, raising an affirmative defense of harmful
error. IAF, Tab 1; Santos v. Department of Transportation , MSPB Docket No.
AT-0752-20-0219-I-2, Appeal File (I-2 AF), Tab 16 at 2. After a hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal.
I-2 AF, Tab 24, Initial Decision (ID).
The appellant has filed a petition for review, arguing among other things that
the agency was not permitted to reinstate the 2016 removal action because he had
already successfully completed the TRP prior to testing positive for alcohol.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File,
Tab 3.
1 Under the agency’s Order 3910.1D, chapter XI § 4.c, for a first offense of off-duty use
of illegal drugs, the agency will initiate the removal of a testing-designated employee but
will hold the removal in abeyance while the employee is offered a conditional opportunity
for rehabilitation. IAF, Tab 5 at 150.2
ANALYSIS
In his initial decision, the administrative judge found that “[t]he appellant’s
TRP, which he signed on August 1, 2016, stated, in pertinent part” that “‘I agree to
totally abstain from the use, on-and off-duty, of any alcohol or products that
contain alcohol while occupying a TDP’” and “‘I understand that the abstinence
requirements in this document remain in effect for the duration of my employment
with the FAA while occupying a TDP.’” ID at 9; IAF, Tab 9 at 52.
On petition for review, the appellant argues that he successfully completed
the TRP on October 24, 2017, and that his agreement to abstain from alcohol was
not part of the TRP. PFR File, Tab 1 at 5-6. He argues that the agency was only
permitted to implement the removal in abeyance during the pendency of the TRP,
and its implementation of the removal on other grounds after the TRP was
completed was a violation of his due process rights. Id. at 7-8. The agency argues
that the administrative judge decided the issue correctly, the appellant plainly
agreed to abstain from alcohol, and the agency warned him multiple times about the
consequences of alcohol consumption. PFR File, Tab 3 at 5-6. The agency notes
that the October 27, 2017 letter of congratulations explicitly warned him that he
would face removal for any future positive test. Id. at 6.
Having carefully considered the record evidence, the administrative judge’s
analysis, and the parties’ arguments, I agree with the appellant that he successfully
completed the TRP, his agreement to abstain from alcohol was not part of the TRP,
and he never agreed that he would be subject to summary removal for the rest of his
career. The distinction between the TRP and the alcohol abstention agreement is
apparent from the TRP memorandum itself, which on the first page states, “This
letter outlines the [TRP] and conditions the [FAA] require you [sic] to complete in
order to retain your safety-related position. You must agree to the [TRP] and all
other conditions described in this letter.” IAF, Tab 4 at 46. The only coherent
reading of this language is that the memorandum sets forth both a TRP and “other
conditions” that are not part of the TRP. 3
Reading onward, the organization of the memorandum leaves something to
be desired in that it jumbles the TRP and the “other conditions” together without
explicitly distinguishing between them. Nevertheless, to my reading, provisions 1
through 17 describe the TRP itself and outline the appellant’s responsibilities with
respect to the TRP. Id. at 47-51. Provision 18, however, has its own heading, titled
“Abstinence Requirements” and contains seven separate clauses, A through G,
some of which specifically pertain to abstinence expectations during the TRP, and
some of which do not. Id. at 51-52. Within the latter category, clauses A, D, and F
refer to abstinence requirements for either the duration of the appellant’s
employment with the FAA or for as long as he holds a testing designated position.
Id. In this latter category is clause D, which states, “I agree to totally abstain from
the use, on-and off-duty, of any alcohol or products that contain alcohol while
occupying a [testing-designated position].” Id. at 52. I would find that this alcohol
abstention clause is one of the “other conditions” not part of the TRP, referred to at
the beginning of the memorandum. Id. at 46.
This conclusion is supported by other provisions of this memorandum, as
well as extrinsic evidence, making clear that the TRP was temporary, as opposed to
the alcohol abstention requirement, which was indefinite. On the first page of the
memorandum, the agency informed the appellant that he was required to
“complete” the TRP, thus indicating that the TRP, unlike the alcohol abstention
requirement, is something that could be completed. Id. at 46. Similarly, provision
number 20 of the memorandum stated that the TRP would last a minimum of 1 year
from the date of the appellant’s first follow-up test and after returning to his
testing-designated position duties. Id. at 53. Likewise, the memorandum states
that the appellant was expected to meet with his Individual Case Monitor at first
every week, then biweekly, and after that once per month “through the completion
of [his] program.” Id. at 49. The agency has not explained how it could be that the
appellant was able to stop meeting with his Individual Case Monitor on October 24,
2017, if he had not successfully completed the TRP program. Id. at 39.4
Because the appellant had successfully completed the TRP in October 2017,
when he tested positive for alcohol consumption in October 2018, the agency was
no longer permitted to reinstate the removal in abeyance. The parties entered into
what was effectively a last chance agreement with respect to the 2016 removal
action. A last chance agreement is a contract, the terms of which are enforceable
before the Board in accordance with normal contract principles. See Ferby v. U.S.
Postal Service, 26 M.S.P.R. 451, 454-57 (1985). Unfortunately, this particular
contract was non-integrated, which may have contributed to the agency’s
mishandling of the matter. Nevertheless, upon examination of the operative
documents, the terms of the contract are clear enough. For his part, the appellant
agreed to undergo a TRP and to accept certain other conditions for continued
employment, including complete abstention from alcohol for as long as he
encumbered a testing-designated position. IAF, Tab 4 at 46-54. In return, the
agency agreed to hold the 2016 removal in abeyance “pending successful
completion of all the terms and conditions in the TRP.” Id. at 41. Once the
appellant successfully completed the TRP in October 2017, the removal in
abeyance was no longer pending, and there was no way for the agency to reinstate it
at that point.
For these reasons, I would find that the agency’s summary reinstatement of
the appellant’s September 2016 removal, without notice and an opportunity to
respond to the new allegations of misconduct, amounted to a violation of his due
process rights, and must be reversed on those grounds. See Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985); Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 680–81 (1991); FAA Personnel Management System,
ch. III § 3. (k); IAF, Tab 5 at 48. Although Vice Chairman Kerner and I disagree
about how to interpret the parties’ contract, we agree that substance misuse is a
very serious problem for an Air Traffic Control Specialist. To the extent that the
appellant agreed to abstain completely from alcohol, his violation of that agreement
could be a chargeable offense, perhaps even warranting his removal. Even if the5
removal under appeal were reversed on due process grounds, there would be
nothing in the Board’s order to prevent the agency from placing the appellant on
administrative leave, or on non-air traffic control duties, while it undertakes new,
constitutionally correct adverse action proceedings. See Ward v. U.S. Postal
Service, 5 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Thome v. Department of
Homeland Security , 122 M.S.P.R. 315, ¶ 22 (2015).
______________________________
Cathy A. Harris
Member6 | Santos_Jahil_F_AT-0752-20-0219-I-2__Final_Order.pdf | 2025-03-27 | JAHIL FRANCISCO SANTOS v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0752-20-0219-I-2, March 27, 2025 | AT-0752-20-0219-I-2 | NP |
27 | https://www.mspb.gov/decisions/nonprecedential/Anderson_LawrenceCH-0752-24-0361-I-1__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE ANDERSON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-24-0361-I-1
DATE: March 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Anderson , Fishers, Indiana, pro se.
Zahra Ayoubi , Esquire, and Doreen M. Loyal , Indianapolis, Indiana, for the
agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed without good cause shown. On petition for
review, the appellant requests review of the initial decision but does not identify
any specific errors in the initial decision. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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. 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 | Anderson_LawrenceCH-0752-24-0361-I-1__Final Order.pdf | 2025-03-27 | LAWRENCE ANDERSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-24-0361-I-1, March 27, 2025 | CH-0752-24-0361-I-1 | NP |
28 | https://www.mspb.gov/decisions/nonprecedential/Hendricks_ThomasSF-0752-20-0074-I-2__Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS HENDRICKS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-20-0074-I-2
DATE: March 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Mary Monahan Steahly , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The agency removed the appellant from his GS-13 Supervisory Border
Patrol Agent (BPA) position with Customs and Border Protection (CBP) based on
a charge of conduct unbecoming a supervisory BPA, based on 7 specifications
related to Facebook postings he made, which another agency employee described
as “unprofessional, derogatory, racially derisive, graphic, and harassing.”
Hendricks v. Department of Homeland Security , MSPB Docket No. SF-0752-20-
0074-I-1, Initial Appeal File (IAF), Tab 4 at 16-20, 47-50, 67. The appellant
filed a Board appeal, and the administrative judge sustained three specifications
of the charge, i.e., specifications 1, 6, and 7, found that the agency proved nexus,
concluded that the appellant failed to prove his affirmative defenses,2 and
2 On review, the appellant argues that the agency committed procedural errors in
investigating his misconduct, including that the investigation was incomplete and had a
predetermined outcome, that it was initiated and rushed due to Congressional pressure,
and that the agency failed to safeguard his procedural rights. Petition for Review File,
Tab 3 at 8-9, 12-14, 17. We agree with the administrative judge that the appellant did
not prove any procedural error was committed. Hendricks v. Department of Homeland
Security, MSPB Docket No. SF-0752-20-0074-I-2, Appeal File, Tab 14, Initial Decision
(ID) at 28; see Scott v. Department of Justice , 69 M.S.P.R. 211, 242 (1995), aff’d,
99 F.3d 1160 (Fed. Cir. 1996) (Table). Furthermore, even if the agency had committed
such an error, the appellant has not shown that, in the absence or cure of the error, the
agency likely would have reached a different result. ID at 28; see Scott, 69 M.S.P.R.
at 242. We also agree with the administrative judge that the appellant has not shown2
sustained the removal. Hendricks v. Department of Homeland Security ,
MSPB Docket No. SF-0752-20-0074-I-2, Appeal File, Tab 14, Initial Decision
(ID) at 1-32.
The appellant has filed a petition for review, arguing, among other things,
that his postings constituted protected speech under the First Amendment.
Petition for Review File, Tab 3 at 12-18, 28-30. Although specifications 6 and 7
present a more complicated constitutional question, we need not reach a
conclusion on those questions because we find, as the administrative judge did,
that the conduct described in specification 1 does not constitute protected speech,
ID at 24-27, and that specification 1 alone is sufficient to sustain the agency’s
overall charge. See Burroughs v. Department of the Army , 918 F.2d 170, 172
(Fed. Cir. 1990) (“[W]here more than one event or factual specification is set out
to support a single charge . . . proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge.”). We also agree with the
administrative judge’s conclusion that the agency established nexus,3 ID at 28-29,
as the appellant made the odious positing in a Facebook group called “I’m
10-15,”4 which had approximately 6,000 to 9,000 current and former BPAs, and
included his subordinates. IAF, Tab 4 at 67, Tab 19 at 73. We furthermore find
how the timing of the agency’s investigation or the fact that it may have been initiated
due to Congressional pressure denied him an opportunity to present his side of the story
or otherwise violated his constitutional right to due process. ID at 21-22.
3 Regarding specification 1, the administrative judge found that the appellant’s social
media post directly affected his position as a Supervisory BPA because it was
“reprehensible.” ID at 28-29. While we agree that such misconduct was
“reprehensible,” we also note that the appellant’s misconduct adversely affected his
co-workers, as they had to view the “unprofessional, derogatory, racially derisive,
graphic, and harassing” image, and interfered with the agency’s mission, as it disrupted
the agency’s operations and resulted in significant negative attention, including from
Congress, the media, and the public. IAF, Tab 4 at 18, 67, 90-94, Tab 5 at 4-44, Tab 15
at 64-65, Tab 19 at 73; Hearing Transcript (HT) at 13-14 (testimony of agency
investigator), 91 (testimony of the deciding official), 147, 149 (testimony of the
appellant).
4 The term “10-15” is a Border Patrol code for subject in custody. HT at 6 (testimony
of investigator), 48 (testimony of the deciding official).3
that, even if only the first specification is sustained, removal is nevertheless well
within the bounds of reasonableness in light of the relevant factors in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). Accordingly, the
administrative judge properly sustained the appellant’s removal, and we affirm
the initial decision.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 205076
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 | Hendricks_ThomasSF-0752-20-0074-I-2__Final Order.pdf | 2025-03-27 | THOMAS HENDRICKS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-0074-I-2, March 27, 2025 | SF-0752-20-0074-I-2 | NP |
29 | https://www.mspb.gov/decisions/nonprecedential/Wasser_Erwin_J_SF-300A-23-0586-I-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERWIN JOSEPH WASSER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-300A-23-0586-I-1
DATE: March 25, 2025
Erwin Joseph Wasser , Silverdale, Washington, pro se.
Meredith Rieth McBride , Esquire, and Joshua J. Roever , Esquire,
Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his employment practices appeal for lack of jurisdiction. The agency
has filed a cross petition for review asserting that the appellant’s initial appeal
was untimely filed without good cause shown. Vice Chairman Kerner has
recused himself from consideration of this case. Because there is no quorum to
alter the administrative judge’s initial decision, the initial decision now becomes
the final decision of the Merit Systems Protection Board in this appeal. Title 5 of
the Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Wasser_Erwin_J_SF-300A-23-0586-I-1__Order.pdf | 2025-03-25 | ERWIN JOSEPH WASSER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-300A-23-0586-I-1, March 25, 2025 | SF-300A-23-0586-I-1 | NP |
30 | https://www.mspb.gov/decisions/nonprecedential/Wasser_Erwin_J_SF-3330-23-0474-I-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERWIN JOSEPH WASSER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-3330-23-0474-I-1
DATE: March 25, 2025
Erwin Joseph Wasser , Silverdale, Washington, pro se.
Meredith Rieth McBride , Esquire, and Joshua J. Roever , Esquire,
Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act appeal for lack of
jurisdiction. Vice Chairman Kerner has recused himself from consideration of
this case. Because there is no quorum to alter the administrative judge’s initial
decision, the initial decision now becomes the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Wasser_Erwin_J_SF-3330-23-0474-I-1__Order.pdf | 2025-03-25 | ERWIN JOSEPH WASSER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-3330-23-0474-I-1, March 25, 2025 | SF-3330-23-0474-I-1 | NP |
31 | https://www.mspb.gov/decisions/nonprecedential/Wasser_Erwin_J_SF-3330-23-0331-I-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERWIN JOSEPH WASSER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-3330-23-0331-I-1
DATE: March 25, 2025
Erwin Joseph Wasser , Silverdale, Washington, pro se.
Meredith Rieth McBride , Esquire, and Joshua J. Roever , Esquire,
Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Veterans Employment Opportunities Act appeal for lack of
jurisdiction. Vice Chairman Kerner has recused himself from consideration of
this case. Because there is no quorum to alter the administrative judge’s initial
decision, the initial decision now becomes the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Wasser_Erwin_J_SF-3330-23-0331-I-1__Order.pdf | 2025-03-25 | ERWIN JOSEPH WASSER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-3330-23-0331-I-1, March 25, 2025 | SF-3330-23-0331-I-1 | NP |
32 | https://www.mspb.gov/decisions/nonprecedential/Wasser_Erwin_J_SF-300A-24-0101-I-1__Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERWIN JOSEPH WASSER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-300A-24-0101-I-1
DATE: March 25, 2025
Erwin Joseph Wasser , Silverdale, Washington, pro se.
Meredith Rieth McBride , Esquire, and Joshua J. Roever , Esquire,
Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his employment practices appeal for lack of jurisdiction.
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Wasser_Erwin_J_SF-300A-24-0101-I-1__Order.pdf | 2025-03-25 | ERWIN JOSEPH WASSER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-300A-24-0101-I-1, March 25, 2025 | SF-300A-24-0101-I-1 | NP |
33 | https://www.mspb.gov/decisions/nonprecedential/Brinkmoeller_BenjaminDC-0831-24-0080-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN BRINKMOELLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-0831-24-0080-I-1
DATE: March 24, 2025
THIS ORDER IS NONPRECEDENTIAL1
Gregory R. Williams , Esquire, Durham, North Carolina, for the appellant.
Sherri A. McCall , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of an Office of Personnel
Management (OPM) final decision. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the initial decision, and REMAND
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the case to the Washington Regional Office for further adjudication in accordance
with this Remand Order.
BACKGROUND
On October 27, 2023, the appellant filed a Board appeal contesting an OPM
final decision determining that he was not eligible to receive a lump sum death
benefit under the Civil Service Retirement System (CSRS) based on his mother’s
death; however, he did not provide a copy of that decision. Initial Appeal File
(IAF), Tab 1. On November 6, 2023, the administrative judge issued an
acknowledgment order wherein he informed the appellant of the applicable
burdens of proof and what he needed to do to establish Board jurisdiction over his
appeal. IAF, Tab 2 at 2-3. The administrative judge explained that the Board has
jurisdiction over OPM determinations affecting an appellant’s rights or interests
under CSRS only after OPM issues a final decision on the matter, and he ordered
the appellant to file evidence and argument as to why the Board has jurisdiction
here by, for example, filing a copy of OPM’s final decision. Id. The
administrative judge also ordered the agency to respond to the order, Id. at 8-9,
but neither party responded. On March 8, 2024, the administrative judge issued a
second order advising the parties that they had failed to respond to the
acknowledgment order and instructing them to comply with that initial order.
IAF, Tab 4. On April 12, 2024, after the parties again failed to respond, the
administrative judge issued a third order providing the appellant with a final
opportunity to file evidence and argument to establish Board jurisdiction, “e.g.,
by filing a copy of OPM’s final or reconsideration decision,” before dismissing
the appeal. IAF, Tab 5. The appellant did not respond.
On April 16, 2024, the administrative judge issued an initial decision,
without holding the appellant’s requested hearing, dismissing the appeal for lack
of jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1-4. In so doing, he
explained that he had provided the appellant with three opportunities over a2
5-month span to submit evidence or argument, such as a final OPM decision,
establishing Board jurisdiction over the appeal. ID at 3-4. He concluded that in
the absence of any such evidence or argument, he could not find that the appellant
had met his jurisdictional burden. ID at 4.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, OPM has filed a response, PFR File, Tab 4, and the appellant has
filed a reply to the agency’s response, PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is not plenary; rather, it is limited to matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears
the burden of proving the Board’s jurisdiction by preponderant evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A). Under 5 C.F.R. § 831.110, an individual whose
rights or interest under CSRS are affected by a final decision of OPM may
request the Board to review the decision in accordance with procedures
prescribed by the Board. See 5 U.S.C. § 8347(d)(1). Generally, the Board has
jurisdiction over OPM determinations affecting an appellant’s rights or interests
under CSRS only after OPM issues a final decision on the matter. Miller v.
Office of Personnel Management , 123 M.S.P.R. 68, ¶ 7 (2015); Coffey v. U.S.
Postal Service, 77 M.S.P.R. 281, 286 (1998). A “final decision” is a decision that
OPM issues after a request for reconsideration of an initial decision, or a decision
OPM that designates as final. 5 C.F.R. § 831.109(f). It is undisputed that neither
party filed a copy of the final decision before the administrative judge.
For the first time on review, the appellant provides a copy of the OPM final
decision determining that he was not eligible to receive a lump sum death benefit
under the CSRS based on his mother’s death. PFR File, Tab 1 at 11-12. The
Board generally will not consider evidence submitted for the first time on review
absent a showing that it was unavailable before the record closed below despite3
the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214
(1980); 5 C.F.R. § 1201.115(d). Here, the appellant asserts that his legal
representative lost access to the Board’s e -filing system shortly after filing this
appeal; specifically, that he was unable to reset his password without the
assistance of a system administrator, and despite submitting a ticket and making
multiple phone calls seeking technical support, he did not regain access to the
system until a few days after the initial decision was issued. PFR File, Tab 1
at 7-8. The appellant also asserts that his representative made numerous phone
calls to OPM seeking updates on the appeal, but the agency never responded, and
as a result, he did not receive the administrative judge’s orders or the initial
decision until the Board’s regional office provided him with courtesy copies on
April 18, 2024. Id. at 7-8. Finally, the appellant argues that the administrative
judge abused his discretion in dismissing the appeal as a sanction, noting that
OPM also failed to comply with the administrative judge’s orders. Id.
Regardless of whether the appellant has shown that OPM’s final decision
was not available to him before the record closed despite his due diligence, the
Board has recognized that appeals involving an appellant’s entitlement to benefits
are fundamentally different from other types of appeals within its jurisdiction,
and equity is of greater concern. See Moore-Meares v. Office of Personnel
Management, 105 M.S.P.R. 613, ¶ 8 (2007) (stating that, in annuity cases, the
paramount concern is whether the appellant is entitled to the benefits she seeks,
not how well she argues her case); Edney v. Office of Personnel Management ,
79 M.S.P.R. 60, ¶ 6 (1998) (explaining that, unlike the competing interests of
agency management and employee rights involved in a disciplinary appeal, there
is only one primary interest involved in a retirement appeal, that of the
applicant’s entitlement under law to a benefit). Furthermore, the issue of Board
jurisdiction is always before the Board and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding. Stoglin v.
Department of the Air Force , 123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x4
864 (Fed. Cir. 2016); see Boechler v. Department of the Interior , 109 M.S.P.R.
542, ¶ 10 (2008) (observing that the Board has an interest in ensuring that
jurisdictional determinations are correct), aff’d, 328 F. App’x 660 (Fed. Cir.
2009); cf. Bent v. Department of State , 123 M.S.P.R. 304, ¶ 6 (2016) (explaining
that it is the Board’s practice to adjudicate an appeal that was premature when
filed but ripens while pending before the Board).
Because the appellant has now submitted evidence that OPM issued a final
decision on his eligibility for death benefits and, therefore, has established that
the Board has jurisdiction over this appeal, we find it appropriate to remand this
appeal for adjudication on the merits. See 5 C.F.R. § 1201.115(e). On remand,
the administrative judge shall hold the appellant’s requested hearing. IAF, Tab 1
at 6; PFR File, Tab 1 at 9. OPM has filed a pleading explaining that another
individual’s rights or interest may be affected by a decision regarding the death
benefits at issue in this appeal. PFR File, Tab 5. Accordingly, on remand the
administrative judge shall put that individual on notice of this proceeding.
5 C.F.R. § 1201.34.
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.5 | Brinkmoeller_BenjaminDC-0831-24-0080-I-1_Remand_Order.pdf | 2025-03-24 | BENJAMIN BRINKMOELLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0831-24-0080-I-1, March 24, 2025 | DC-0831-24-0080-I-1 | NP |
34 | https://www.mspb.gov/decisions/nonprecedential/Smith_KenyaDC-0752-23-0373-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENYA SMITH,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-23-0373-I-1
DATE: March 21, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elaine Fitch , Esquire, Washington, D.C., for the appellant.
Adam Chandler , Esquire, Christiann C. Burek , Esquire, and Thomas Oliver
Walker , Esquire, Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
sustained its charge of inappropriate conduct but mitigated the agency -imposed
removal to a 120 -day suspension. On petition for review, the agency argues that
the administrative judge abused her discretion when she mitigated 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).
chosen penalty by reweighing the Douglas factors and substituting her judgment
for that of the deciding official. See Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of factors
relevant to the penalty determination in adverse actions) . Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
ORDER
We ORDER the agency to cancel the removal and substitute in its place a
120-day suspension without pay. 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 to2
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
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). The3
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 205076
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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
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. | Smith_KenyaDC-0752-23-0373-I-1__Final_Order.pdf | 2025-03-21 | KENYA SMITH v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-23-0373-I-1, March 21, 2025 | DC-0752-23-0373-I-1 | NP |
35 | https://www.mspb.gov/decisions/nonprecedential/Ornelas_BryanSF-0752-22-0206-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRYAN ORNELAS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-22-0206-I-1
DATE: March 21, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony Maielli , Imperial, California, for the appellant.
Douglas M. Weisband , Esquire, and Dennis Brady , Esquire, San Diego,
California, for the appellant.
Nelson Wong , Esquire, San Diego, California, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal from Federal service and found that the
appellant proved that his race and national origin were motivating factors in the
removal action. For the reasons discussed below, we GRANT the agency’s
petition for review. We AFFIRM the administrative judge’s findings that the
agency proved its charge by preponderant evidence and that the appellant failed
to prove his age discrimination affirmative defense. We REVERSE the
administrative judge’s findings that the agency failed to prove nexus and that the
appellant proved that the agency was motivated by his race and national origin in
proposing his removal. We FIND instead that the appellant did not prove that the
removal decision was motivated by race and national origin discrimination, and
we VACATE the administrative judge’s but -for findings in this regard. We also
FIND that the appellant failed to prove his affirmative defense of harmful
procedural error. We further FIND that the penalty of removal is reasonable, and
we SUSTAIN the removal action.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant, a Border Patrol Agent (BPA) with the agency’s Customs and
Border Protection (CBP), was removed from Federal service for one charge of
failure to maintain a condition of employment after his driver’s license was
suspended for 1 year. Initial Appeal File (IAF), Tab 30, Initial Decision (ID)
at 2. The administrative judge held a hearing. IAF, Tab 29, Hearing Recording;
Hearing Transcript (HT). In the initial decision, the administrative judge found
that the agency proved its charge by preponderant evidence. ID at 11-12. He
found, however, that the agency failed to prove that the appellant’s removal
would promote the efficiency of the service, i.e., nexus, and he therefore reversed
the appellant’s removal. ID at 13-15. He also found that the appellant proved
that his race and national origin were motivating factors in the agency’s decision2
to propose his removal but not a but -for cause of the agency’s decision to sustain
the proposed removal. ID at 16-24. The administrative judge found that the
appellant failed to prove his age discrimination affirmative defense. Id. The
agency has filed a petition for review of the initial decision, the appellant has
filed a response, and the agency has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4.
Neither party has challenged the administrative judge’s finding that the
agency proved its charge of failure to maintain a condition of employment, and
we find no basis to disturb it.
The agency proved nexus.
Pursuant to 5 U.S.C. § 7513(a), an agency may remove an employee only
for such cause as will promote the efficiency of the service. To satisfy that
requirement, the agency must show by preponderant evidence that there is a nexus
between the misconduct and the work of the agency, i.e., that the employee’s
misconduct is likely to have an adverse impact on the agency’s performance of its
functions. Brown v. Department of the Navy , 229 F.3d 1356, 1358
(Fed. Cir. 2000). In finding that the agency failed to prove nexus, the
administrative judge considered that, even without a valid driver’s license, which
was indisputably required for the appellant’s position, he was able to perform
most of the duties that he was performing prior to the license suspension.
ID at 14-15. He also found that, considering the agency’s need for BPAs, it was
in the agency’s interest to retain the appellant to perform limited duties rather
than remove him. ID at 14-15. We disagree.
The Board has consistently found that an adverse action based on an
employee’s failure to maintain a requirement of his position, such as a license,
promotes the efficiency of the service. E.g., Dieter v. Department of Veterans
Affairs, 2022 MSPB 32, ¶ 6 n.2 (declining to disturb the administrative judge’s
finding that the agency proved nexus in connection with the employee’s failure to
maintain a condition of employment); Penland v. Department of the Interior ,3
115 M.S.P.R. 474, ¶ 11 (2010) (“Because the appellant needed a pilot
authorization in order to perform the duties of his position, we find that the
agency has established both the reasonableness of its decision to remove the
appellant and the requisite nexus between the appellant’s loss of his authorization
and the efficiency of the service.”); Adams v. Department of the Army ,
105 M.S.P.R. 50, ¶ 19 (2007) (finding that, because the appellant failed to
maintain his access to the agency’s computer system, which was a condition of
his employment, the agency established both the reasonableness of its decision to
remove the appellant and nexus), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). The
agency’s initial placement of the appellant on administrative duties following the
license suspension, which continued for 5 months until he was removed, did not
obligate it to continue accommodating him and did not preclude the agency from
taking adverse action. See Benally v. Department of the Interior , 71 M.S.P.R.
537, 540 (1996) (affirming a removal action for failure to maintain a condition of
employment and finding that the fact that the agency initially accommodated the
appellant’s inability to drive for a few months did not obligate it to continue to
accommodate him until his license was returned a year later). In the initial
decision, the administrative judge found that the Board’s decision in Benally
created a requirement that, if an agency chooses to initially accommodate an
employee who fails to maintain a condition of employment, it must show that
continued accommodation would create an undue burden before proposing
disciplinary action. ID at 15. We believe his reading of Benally is too stringent,
and we do not agree that it creates such a strict test to be universally applied
when an agency proposes to remove an employee for failing to maintain a valid
driver’s license after an initial period of accommodation. We also disagree with
the administrative judge that the 1 -year term of the suspension, rather than an
indefinite suspension, requires a finding that the agency did not prove nexus.
ID at 15. The Board has previously affirmed an appellant’s removal for failure to
maintain a condition of employment in connection with a 1-year driver’s license4
suspension. See Benally, 71 M.S.P.R. at 540; Shoffner v. Department of the
Interior, 9 M.S.P.R. 265 (1981).2 Unlike the administrative judge, we are
persuaded by the agency’s argument that allowing the appellant to perform
limited duties after the loss of his license could lead to discontent among other
agents and that the appellant could not perform the full range of his job duties
without a license, including deployment during an emergency. HT at 25-26.
Under these circumstances, we find that the agency has proved that its removal
action promotes the efficiency of the service.
The appellant did not prove that the agency committed harmful procedural error.
Because the administrative judge reversed the agency’s action based on his
finding that it failed to prove nexus, he did not make a finding as to the
appellant’s affirmative defense of harmful procedural error. ID at 16. We
consider it here. To prove harmful procedural error, the appellant must establish
that the agency committed an error in the application of its procedures that is
likely to have caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of that error. 5 C.F.R. § 1201.4(r); see
Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 685 (1991).
The appellant has asserted that the agency committed harmful procedural
error in the following ways: (1) it failed to provide comparators; and (2) it failed
to follow its table of penalties. HT at 253. The appellant’s argument related to
comparators is not clear. To the extent the appellant is arguing that the agency’s
2 In the initial decision, the administrative judge distinguished Shoffner, finding that, in
that case, the appellant’s job was primarily related to driving and he was unable to
perform those duties after his license was revoked for 1 year. ID at 15. By contrast, he
found that the appellant could perform most of his job duties without a driver’s license.
Id. Although the Board in Shoffner, 9 M.S.P.R. at 267-68, discussed the extensive
driving that the appellant’s job required, it did so in its consideration of the penalty
analysis. We do not believe that Shoffner creates a rule requiring agencies to prove that
an employee’s primary job duties are affected by the employee’s failure to maintain a
condition of employment. In any event, consistent with Shoffner, we have considered
the effect of the 1-year license suspension on the appellant’s job duties in our
discussion of the reasonableness of the penalty. 5
purported failure to provide comparators in response to an information request
from the appellant’s union representative constitutes harmful error, HT at 198-99,
253, we disagree. We have considered that the agency provided information
about potential comparators before the administrative judge. IAF, Tab 25. Only
one of the potential comparators was charged with the same offense as the
appellant. Id. at 40-41. Information about this comparator was provided to the
appellant’s union representative before a decision on the proposed removal was
issued. IAF, Tab 20 at 45-51; HT at 75. The agency’s failure to provide
information about other individuals, who are not comparators, does not constitute
harmful procedural error. See Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 17
(explaining that, for purposes of a disparate penalty analysis, relevant
comparators must have committed the same or similar act of misconduct). We
also find unpersuasive the appellant’s argument that the agency committed
harmful procedural error by failing to follow its table of penalties. HT at 253.
The appellant has not provided evidence that the removal is outside the agency’s
recommended penalty range for an offense of failure to maintain a condition of
employment. We therefore find that he has failed to prove his affirmative defense
of harmful procedural error.
The appellant did not prove that the agency discriminated against him based on
race and national origin. 3
An appellant may prove discrimination by various methods, including by
circumstantial evidence. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 23-24. Circumstantial evidence may include evidence of
suspicious timing, ambiguous statements, behavior toward other employees in a
protected group, comparator evidence demonstrating that employees similarly
situated to the appellant other than in the protected characteristic received
3 In the initial decision, the administrative judge found that the appellant failed to prove
his age discrimination affirmative defense. ID at 20. Neither party has challenged this
finding on review, and we find no basis to disturb it. 6
systematically better treatment, evidence showing that the agency’s stated reason
for its action is unworthy of belief and pretext for discrimination, or other bits
and pieces of evidence from which an inference of discrimination may be drawn.
Id., ¶ 24. In the initial decision, the administrative judge found, based on bits and
pieces of circumstantial evidence, that the appellant proved that the agency was
motivated by his race and national origin (Hispanic) in proposing his removal .
ID at 18. He found, however, that the appellant failed to prove that his race and
national origin were the but-for cause of the agency’s decision to sustain the
removal. Id. Notably, the administrative judge did not make a finding on
whether the appellant proved by preponderant evidence that his race and national
origin were motivating factors in the removal decision . We do so now.
The administrative judge noted that there was no direct evidence of
discrimination, such as statements by agency officials that reflect bias based on
race and/or national origin. ID at 18. The deciding official testified that he did
not know the appellant’s race and national origin and such characteristics did not
play a role in his decision. HT at 31-32. Moreover, the administrative judge
found that there was no evidence that the deciding official knew the appellant’s
race and national origin or that he considered these characteristics as a negative.
ID at 21. The appellant does not challenge these findings.
For the purposes of our analysis, we have considered whether the deciding
official was influenced by another official with an improper motive. See, e.g.,
Birdie C. v. Department of Agriculture , EEOC Appeal No. 2023001609, 2024 WL
862608 at *3 (Feb. 12, 2024) (“Under a cat’s paw theory, animus and
responsibility for [an] adverse action can be attributed to a supervisor who was
not the ultimate decision maker, if that supervisor intended the adverse action to
be a consequence of her discriminatory conduct.”). As the administrative judge
noted, neither party called the proposing official as a witness, and the appellant
did not introduce any evidence about his mental state. ID at 23. Additionally,
the administrative judge noted that the parties examined the Labor7
Relations/Employee Relations Specialist, who gathered records and made
recommendations about discipline to the proposing official, which she said he
accepted. Id.
However, we are not persuaded by administrative judge’s determination
that circumstantial evidence supports the conclusion that the appellant’s race and
national origin were motivating factors in the proposed removal . ID at 18-21.
Importantly, the appellant has not provided evidence, or even alleged, that the
agency treated non-Hispanic employees whose licenses were suspended for 1 year
differently than him. The fact that the agency seems to lack a policy or guidance
regarding how to distinguish a 1-year suspension from a longer suspension,
ID at 19, without more, is not evidence of discrimination. The administrative
judge’s comparison of the agency’s treatment of employees who were charged
with or convicted of driving under the influence (DUI) is inapposite to the
agency’s treatment of the appellant because the appellant was not charged with
DUI.4 In any event, the deciding official testified that employees who were
convicted of DUI were usually able to obtain a restricted driver’s license, which
enabled them to drive for work and avoid a failure to maintain a condition of
employment charge. HT at 41-42. It is undisputed that the appellant did not have
a restricted driver’s license and was not able to drive for any purpose for 1 year.
HT at 21, 41. We therefore disagree with the administrative judge that the
agency’s selection of the charge is suspicious under these circumstances.
We also disagree with the administrative judge that the agency’s treatment
of R.D. constitutes circumstantial evidence of discrimination. ID at 20-21. R.D.
lost his ability to carry a firearm, which was required for his position, after a state
court issued a restraining order against him. IAF, Tab 25 at 40. As the agency
noted in its petition for review, both the appellant and R.D. failed to maintain a
condition of employment and the agency treated them the same by proposing their
4 Indeed, if the agency charged the appellant with DUI, the charge would likely not be
sustained because his blood alcohol level was below the legal limit. ID at 6.8
removals. PFR File, Tab 1 at 17. However, in R.D.’s case, he regained his
ability to carry a firearm before the agency made a decision on the proposed
removal because the state court rescinded the restraining order. Id. There is no
evidence that the agency controlled the resolution of the restraining order or that
it delayed issuing a decision on R.D.’s proposed removal to permit the court to
resolve the restraining order. Further, the record reflects that the appellant and
R.D. were assigned to administrative duties for a similar period of time before
disciplinary action was proposed. HT at 121, 149. We therefore discern no
meaningful difference in the agency’s treatment of the appellant and R.D.
For these reasons, we conclude that the appellant has not proven that his
race and national origin were a motivating factor in the proposed removal , and we
reverse the administrative judge’s findings in this regard. Nor has the appellant
otherwise proven that the deciding official was improperly influenced by any
alleged animus by other management officials. We further conclude that the
appellant did not prove that his race and national origin were a motivating factor
in the removal decision . See, e.g., Social Security Administration v. Levinson ,
2023 MSPB 20, ¶ 29 (noting that the administrative law judge concluded that the
official responsible for the matter had no knowledge of the respondent’s equal
employment opportunity (EEO) complaint, the respondent did not give the Board
any reason to find otherwise, and he did not present any other substantive
argument or evidence about EEO reprisal being a motivating factor in the
complaint), aff’d, No. 2023-2277, 2024 WL 3579909 (Fed. Cir. July 30, 2024).
Because we find that the appellant did not prove that his race and national origin
were motivating factors in the removal decision, we need not resolve whether he9
proved “but-for” causation in this regard.5 Pridgen, 2022 MSPB 31, ¶¶ 20-22.
We also vacate the administrative judge’s but-for findings related to these claims.
The penalty of removal is reasonable.
In an adverse action appeal taken under chapter 75, the agency must prove
its charge by preponderant evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty imposed was within the
tolerable bounds of reasonableness. Hall v. Department of Defense , 117 M.S.P.R.
687, ¶ 6 (2012). Having found that the agency proved its charge and the nexus
requirement, we next consider whether the selected penalty of removal is within
the tolerable limits of reasonableness.
In assessing the reasonableness of the penalty, the Board will consider a
nonexhaustive list of factors set forth in Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981): (1) the nature and seriousness of the offense and
its relation to the employee’s duties, position, and responsibilities, including
whether the offense was intentional or technical or inadvertent, or was committed
maliciously or for gain, or was frequently repeated; (2) the employee’s job level
and type of employment, including supervisory or fiduciary role, contacts with
the public, and prominence of the position; (3) the employee’s past disciplinary
record; (4) the employee’s past work record, including length of service,
performance on the job, ability to get along with fellow coworkers, and
dependability; (5) the effect of the offense upon the employee’s ability to perform
at a satisfactory level and its effect upon supervisors’ confidence in the
5 The administrative judge noted in the initial decision that the appellant also raised a
claim of discrimination based on color, ID at 2, 16, but he did not make any findings in
this regard. The appellant, who was represented by counsel, did not file a cross petition
for review, and he does not otherwise raise this omission on review. See, e.g.,
Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 18 (setting forth a nonexhaustive list
of factors in determining whether an appellant waived or abandoned a previously
identified affirmative defense, including whether the appellant raised the administrative
judge’s processing of the claim in his petition for review and whether he was
represented on review). Therefore, we need not address this issue further.10
employee’s ability to perform assigned duties; (6) the consistency of the penalty
with those imposed upon other employees for the same or similar offenses; (7) the
consistency of the penalty with any applicable table of penalties; (8) the notoriety
of the offense or its impact upon the reputation of the agency; (9) 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; (10) the potential
for the employee’s rehabilitation; (11) mitigating circumstances surrounding the
offense such as unusual job tensions, personality problems, mental impairment,
harassment or bad faith, malice or provocation on the part of others involved in
the matter; and (12) the adequacy and effectiveness of alternative sanctions to
deter such conduct in the future by the employee or others. Not every factor is
relevant in every case. See Chavez v. Small Business Administration ,
121 M.S.P.R. 168, ¶ 9 (2014) (finding that a deciding official does not have to
consider each of the Douglas factors in making his penalty determination).
When all of the agency’s charges are sustained, as they are here, the Board
will review the agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
the tolerable limits of reasonableness. Powell v. U.S. Postal Service ,
122 M.S.P.R. 60, ¶ 12 (2014). In making this determination, the Board must give
weight to the agency’s primary discretion in maintaining employee discipline and
efficiency, recognizing that the Board’s function is not to displace management’s
responsibility but to ensure that managerial judgment has been properly
exercised. Id. The Board will modify or mitigate an agency-imposed penalty
only when it finds that the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Id.; see Stuhlmacher v.
U.S. Postal Service , 89 M.S.P.R. 272, ¶ 20 (2001).
In the letter sustaining the agency’s proposed removal, the deciding official
stated that he considered the nature and seriousness of the offense and how it
related to the appellant’s duties. IAF, Tab 1 at 12. He also stated that he11
considered the appellant’s 13 years of service, the lack of any prior disciplinary
history, and his satisfactory performance record. Id. at 13. He concluded that the
mitigating factors did not outweigh the seriousness of the offense. Id. He also
stated that he considered reassignment to another position within CBP; however,
he determined that reassignment was not in the best interest of the agency and
that removal was the appropriate penalty. Id. At the hearing, the deciding
official testified that he considered the twelve Douglas factors and concluded that
removal was appropriate based on the seriousness of the offense and the
appellant’s inability to perform the full duties of his position without a driver’s
license. HT at 23. He also testified that he was unable to locate any positions in
the agency to which the appellant could be reassigned without a driver’s license
and that permitting the appellant to continue to perform limited duties in the BPA
position could affect employee morale. HT at 24-26.
We find that the deciding official appropriately considered the relevant
Douglas factors and that the penalty of removal is within the tolerable limits of
reasonableness. See Penland, 115 M.S.P.R. 474, ¶ 11 (finding that the penalty of
removal was reasonable for an employee’s failure to maintain a condition of
employment); Adams, 105 M.S.P.R. 50, ¶ 19 (same). The appellant has argued
that the penalty of removal is too harsh in light of testimony that the appellant
likely would not have been removed from Federal service if he had been
convicted of DUI. HT at 253. However, employees who were charged with DUI
are not appropriate comparators for purposes of a disparate penalty analysis. See
Singh, 2022 MSPB 15, ¶ 17.
Based on the foregoing, we find that the agency proved its charge of failure
to maintain a condition of employment and a nexus between the action and the
efficiency of the service, and that the selected penalty is within the tolerable
limits of reasonableness. We find that the appellant failed to prove his
affirmative defenses. The agency’s removal action is sustained.12
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).
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.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on14
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or15
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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
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. 16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Ornelas_BryanSF-0752-22-0206-I-1__Final_Order.pdf | 2025-03-21 | BRYAN ORNELAS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-22-0206-I-1, March 21, 2025 | SF-0752-22-0206-I-1 | NP |
36 | https://www.mspb.gov/decisions/nonprecedential/Al-Awadi_Tracy_E_SF-0752-23-0378-I-1__Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY ELIZABETH AL-AWADI,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-23-0378-I-1
DATE: March 21, 2025
THIS ORDER IS NONPRECEDENTIAL1
Tracy Elizabeth Al-Awadi , Las Vegas, Nevada, pro se.
Judson R. Peverall and Luke Archer , Springfield, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her reduction in grade appeal as untimely filed without good cause
shown for the delay. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision , and REMAND the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant, a GS-09 Administrative Support Specialist with the agency’s
Drug Enforcement Administration (DEA), was assigned to its Rome, Italy
Country Office from October 2016 to February 2023. Initial Appeal File (IAF),
Tab 1 at 1-2, 8. Before transferring overseas, the appellant signed a Return
Assignment Agreement, or “mobility agreement,” which states, in relevant part,
that “[i]f a temporary promotion assignment request for [her] tour extension
beyond the 5-year maximum was approved, the temporary promotion [would] be
made permanent and, upon completion of the tour extension, [she would] return
to a domestic position at the same grade held overseas.” Id. at 9-10. While
overseas, the agency temporarily promoted the appellant to the GS-11
Administrative Support Specialist position, effective October 29, 2017. Id. at 8.
She remained in that position for over 5 years until her tour ended and the agency
reassigned her to a GS-09 Mission and Operations Support Specialist position in
its Las Vegas District Office. Id. at 7-8. The Standard Form 50 (SF-50)
documenting the action indicated that it was a “[change] to lower grade, level or
band,” effective February 26, 2023. Id. at 7. The SF-50 also included the remark
“action at employee’s request.” Id.
On May 15, 2023, the appellant filed the instant appeal challenging a
“reduction in grade, pay, or band” and arguing that the agency violated a
provision of her mobility agreement. Id. at 1-2. The administrative judge did not
issue a jurisdictional order to the parties. Instead, she issued a timeliness order
because it appeared that the appeal may be untimely filed. IAF, Tab 4. The
administrative judge instructed the appellant to file evidence and argument
demonstrating that her appeal was timely filed or that good cause existed for the
delay. Id. The appellant submitted several responses wherein she argued good2
cause for her untimely filing. IAF, Tabs 5, 7, 9, 10, 11. Specifically, she argued
that, amongst other things, the agency knew that a demotion was not acceptable to
her, it did not fulfill its obligation to search for an appropriate domestic
reassignment to the GS-11 level, and she was “completely overwhelm[ed]” during
the filing period after returning from overseas to an uninhabitable home, living
out of a hotel, and dealing with her court case against her former tenants. IAF,
Tab 5 at 4, Tab 10 at 4-20.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal as untimely filed without good
cause shown for the delay. IAF, Tab 12, Initial Decision (ID) at 1, 8. The
administrative judge found that the appeal was untimely filed; the agency had no
obligation to provide the appellant notice of her appeal rights because the
appellant did not show that the agency knew, or should have known, that she
considered the action involuntary or adverse; and even if the agency had such an
obligation, the appellant did not show that she acted with due diligence after
having actual knowledge of her appeal rights. ID at 3-8. Thus, she found that
she did not establish good cause for the delay in filing her appeal. ID at 8.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
Under chapter 75, an employee’s reduction in grade may be appealed to the
Board. 5 U.S.C. §§ 7512(3), 7513(d). The appellant has the burden of proof on
the issue of jurisdiction, and when she makes a nonfrivolous allegation of Board
jurisdiction, she is entitled to a hearing on the jurisdictional question. Lara v.
Department of Homeland Security , 101 M.S.P.R. 190, ¶ 7 (2006). A nonfrivolous
allegation of Board jurisdiction is an allegation of fact which, if proven, could
establish a prima facie case that the Board has jurisdiction over the matter at
issue. Id. To constitute an appealable action, the reduction in grade at issue must3
be involuntary. Goodwin v. Department of Transportation , 106 M.S.P.R. 520,
¶ 12 (2007). It is undisputed that the appellant experienced a reduction in grade
when the agency reassigned her to its Las Vegas District Office after her overseas
assignment ended. IAF, Tab 1 at 2, 7, Tab 8 at 5-7. However, the parties dispute
whether the appellant requested or voluntarily accepted the reduction in grade.
IAF, Tab 1 at 2, Tab 5 at 4, Tab 8 at 6-7, Tab 10 at 4, 20. Thus, this appeal
presents a question of whether the appellant suffered an appealable action.
The issues of jurisdiction and timeliness are “inextricably intertwined” because
there is a question of whether the appellant suffered an appealable action.
The existence of Board jurisdiction is the threshold issue in adjudicating an
appeal. See Higgins v. U.S. Postal Service , 86 M.S.P.R. 447, ¶ 6 (2000).
However, in an untimely appeal, a jurisdictional determination is not deemed to
be in the Board’s interests of adjudicatory efficiency and fairness to the parties
involved if the record is sufficiently developed to show that the appeal should be
dismissed because no good cause exists for the untimely filing. Id. Such an
approach is not appropriate, however, if the jurisdictional and timeliness issues
are “inextricably intertwined,” that is, if the resolution of the timeliness issue
depends on whether the appellant was subjected to an appealable action. Id.
The issues of timeliness and jurisdiction are generally considered to be
inextricably intertwined in an involuntary action appeal because a failure to
inform an employee of Board appeal rights may excuse an untimely filed appeal
and whether the agency was obligated to notify the employee of such appeal
rights depends on whether the employee was affected by an appealable action.
See Hanna v. U.S. Postal Service , 101 M.S.P.R. 461, ¶ 6 (2006); see also
Wright v. Department of Transportation , 99 M.S.P.R. 112, ¶ 13 (2005)
(acknowledging that when the voluntariness of the personnel action is in question,
jurisdiction and timeliness are inextricably intertwined, and the issue of
timeliness cannot be resolved before deciding the jurisdictional issue).4
In dismissing the appeal as untimely filed without good cause, the
administrative judge determined that the record was sufficiently developed to
determine timeliness separate from the issue of jurisdiction. ID at 3. We
disagree. As explained further below, the appellant raised nonfrivolous
allegations that her reduction in grade was involuntary. IAF, Tab 1 at 2, 9-10,
Tab 5 at 4, Tab 10 at 4, 20. Therefore, the resolution of the timeliness issue
depends on whether she was subjected to an appealable action. Thus, it was
improper for the administrative judge to dismiss this appeal as untimely filed.
See Higgins, 86 M.S.P.R. 447, ¶¶ 9-10.
The appeal must be remanded for a jurisdictional hearing because the appellant
made a nonfrivolous allegation that her reduction in grade was involuntary.
If an appellant makes a nonfrivolous allegation casting doubt on the
voluntariness of her acceptance of a reduction in grade, she is entitled to a
hearing at which she must prove jurisdiction by a preponderance of the evidence.
See Harris v. Department of Veterans Affairs , 114 M.S.P.R. 239, ¶ 9 (2010).
Merely pro forma allegations are insufficient to meet the standard, however. Id.
In determining whether the appellant has made such a nonfrivolous allegation, the
administrative judge may consider the agency’s documentary submissions. Id.
However, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties, and the agency’s evidence may not be
dispositive. Id.; Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994).
An appellant may establish that her acceptance of a reduction in grade was
involuntary, and thus within the Board’s jurisdiction, by presenting sufficient
evidence that it was the result of duress or coercion brought on by the agency or
her reasonable reliance on misleading statements by the agency. Harris,
114 M.S.P.R. 239, ¶ 8; Reed v. U.S. Postal Service , 99 M.S.P.R. 453, ¶ 12 (2005),
aff’d, 198 F. App’x 966 (Fed. Cir. 2006). Likewise, even if an employee accepts5
a reduction in grade, that action may nevertheless be appealable if the employee
can show that the agency deprived her of any meaningful choice in the matter.
See Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013) (observing
that an employee may establish Board jurisdiction over a constructive adverse
action such as an involuntary demotion by proving, among other things, that she
lacked a meaningful choice in the matter and it was the agency’s wrongful actions
that deprived her of that choice).
Although the appellant did not explicitly use the terms “involuntary” or
“constructive” in her pleadings below, she appeared to allege that her reduction in
grade was involuntary because the agency demoted her to a GS-09 position in
violation of the mobility agreement. IAF, Tab 1 at 2, 9-10, Tab 5 at 4, Tab 10
at 4, 20. In particular, the appellant asserted that she did not request, nor did she
have a choice in, a reassignment to a GS-09 position, and she repeatedly asked
the agency to honor the mobility agreement, which entitled her to return to a
domestic position at the GS-11 level. IAF, Tab 1 at 2, 9-10, Tab 5 at 4, Tab 10
at 4, 20. We find that the appellant’s statements are sufficient to constitute a
nonfrivolous allegation that she had no choice but to accept reassignment to the
GS-09 position because the agency failed, or possibly refused, to honor the
mobility agreement.
The appellant also alleged facts that, if proven, demonstrate that the agency
knew, or should have known, that she considered the action involuntary. IAF,
Tab 1 at 2, Tab 5 at 4, Tab 10 at 4, 20. Specifically, she asserted that the agency
knew that she considered reassignment to a lower grade was an unacceptable
demotion. IAF, Tab 5 at 4. In support of her assertion, the appellant explained
that the agency initially reassigned her to a GS-07 position, which she repeatedly
said she did not want to accept, only to learn that the agency reassigned her to a
GS-09 position when she reported for duty in Las Vegas. PFR File, Tab 1 at 8,
IAF, Tab 5 at 4, Tab 10 at 4, 20. She also alleged that the positions and grades6
“were and still are in a transition of upgrades,” and she continued to question her
grade. PFR File, Tab 1 at 8; IAF, Tab 5 at 4.
To the extent that the administrative judge found that the appellant
voluntarily accepted the GS-09 reassignment, she erred. ID at 3-6. Here, the
appellant was not provided notice of the jurisdictional issues in a jurisdictional
order, the agency’s pleadings, or the initial decision, precluding any dismissal on
jurisdictional grounds on review. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985). Moreover, the mobility agreement and
the circumstances under which the appellant’s overseas assignment was ending
and reassignment was necessary complicates such a finding without a proper
jurisdictional analysis. See, e.g., Kinsella v. Department of Health and Human
Services, 41 M.S.P.R. 643, 647-48 (1989) (finding that the administrative judge
erred in failing to make specific findings on the issue of the appellant’s mobility
agreement because the circumstances surrounding it were relevant to the
appellant’s claims of an involuntary downgrade and enforced leave).
Nonetheless, even without such notice, we find that the appellant made
nonfrivolous allegations that her reduction in grade was involuntary. IAF, Tab 1
at 2, 9-10, Tab 5 at 4, Tab 10 at 4, 20. Accordingly, we find that the appellant is
entitled to a hearing on the issue of jurisdiction. Harris, 114 M.S.P.R. 239, ¶ 11.
On remand, if the administrative judge finds that the Board lacks
jurisdiction over the appellant’s involuntary reduction in grade, she shall dismiss
the appeal for lack of jurisdiction. If, however, she finds that the Board has
jurisdiction over the appellant’s claim, then she shall proceed to adjudicate the
appeal on the merits.2
2 Although, as explained above, the issues of jurisdiction and timeliness are inextricably
intertwined here, the administrative judge need not address the timeliness of the appeal
because we find that the appellant established good cause for her untimeliness. Here,
the appellant is pro se; she was not advised of her appeal rights or how to establish
jurisdiction over her alleged involuntary claim, and a delay of 45 days, considering the
circumstances, is not indicative of a lack of due diligence on the appellant’s part.
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).7
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Al-Awadi_Tracy_E_SF-0752-23-0378-I-1__Remand_Order.pdf | 2025-03-21 | null | SF-0752-23-0378-I-1 | NP |
37 | https://www.mspb.gov/decisions/nonprecedential/Erickson_RichardAT-3443-07-0016-C-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD ERICKSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBERS
AT-3443-07-0016-X-1
AT-3443-07-0016-C-2
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Erickson , Cape Coral, Florida, pro se.
Sherry Streicker , Esquire, Roderick Eves , Esquire, and Theresa M. Gegen ,
Esquire, St. Louis, Missouri, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
In a December 10, 2021 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s December 31, 2013
Opinion and Order, which granted the appellant’s request for corrective action
under the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) to the extent the agency failed to demonstrate that it provided the
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant the correct amount of back pay and benefits.2 Erickson v. U.S. Postal
Service, MSPB Docket No. AT-3443-07-0016-C-2, Compliance File (C-2 CF),
Compliance Initial Decision (CID); Erickson v. U.S. Postal Service , 120 M.S.P.R.
468 (2013). Accordingly, the administrative judge granted the appellant’s petition
for enforcement and ordered the agency to provide him the proper amount of back
pay and benefits, with interest, and an explanation of its updated back pay
calculations. CID at 15. 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
In April 2000, the agency removed the appellant, who had been absent from
work for lengthy periods while serving on active duty with the U.S. Army National
Guard Reserve, for excessive use of military leave. Erickson, 120 M.S.P.R. 468,
¶ 2. After his removal, he re-enlisted with the National Guard and remained on
active duty until December 31, 2005. Id.
In 2006, the appellant appealed his removal to the Board, arguing that the
agency violated the nondiscrimination provision of USERRA, 38 U.S.C. § 4311.
Id., ¶ 3. Following two remand orders from the U.S. Court of Appeals for the
Federal Circuit, which found that the agency violated 38 U.S.C. § 4311 when it
fired the appellant based on his use of military leave and that he did not abandon his
civilian career or waive his protections under USERRA, the administrative judge
issued a December 14, 2012 remand initial decision granting the appellant’s
request for corrective action under USERRA and ordering the agency to cancel his
removal, reinstate him, and compensate him for any loss of wages or benefits.
Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-M-5,
2 The December 10, 2021 compliance initial decision’s finding of partial noncompliance
became final after neither party filed a timely petition for review with the Board. See
Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-C-2, Order
(Mar. 3, 2023) (dismissing the appellant’s petition for review of the compliance initial
decision as untimely filed without good cause shown).2
Remand Appeal File, Tab 18, Remand Initial Decision; see Erickson v. U.S. Postal
Service, 636 F.3d 1353, 1357 -59 (Fed. Cir. 2011); Erickson v. U.S. Postal Service ,
571 F.3d 1364, 1369-70 (Fed. Cir. 2009). The agency petitioned for review of the
remand initial decision.
In the December 31, 2013 Opinion and Order, the Board denied the agency’s
petition for review and affirmed the remand initial decision. Erickson,
120 M.S.P.R. 468, ¶ 1. In relevant part, the Board agreed with the administrative
judge that the appellant was entitled to reinstatement as a remedy for agency’s
violation of 38 U.S.C. § 4311. Id., ¶ 14. The Board further found that the
appellant’s failure to timely apply for reemployment did not preclude reinstatement
and that his post-removal military service did not limit the period of time for which
he had to be reinstated. Id., ¶¶ 15-16. The Board also agreed with the
administrative judge that the appellant was entitled under 38 U.S.C. § 4324(c)(2) to
lost wages and benefits suffered as a result of the agency’s violation of
section 4311. Id., ¶ 17. The Board noted that the general provisions of the Back
Pay Act do not control the remedy that appellants may receive should they succeed
on the merits of their USERRA claims and advised that, because a service member
is expected to exercise reasonable diligence to mitigate economic damages suffered
as a result of an employer’s violation of USERRA, the award of lost wages and
benefits must be offset by the amount the appellant should have reasonably earned
during the relevant period. Id. The Board again ordered the agency to cancel the
appellant’s removal, retroactively reinstate him, and pay him the correct amount of
wages and benefits lost as a result of the removal action as required under
38 U.S.C. § 4324(c)(2). Id.
On March 1, 2019, the appellant filed a petition for enforcement of the
Board’s Opinion and Order. Erickson v. U.S. Postal Service , MSPB Docket No.
AT-3443-07-0016-C-1, Compliance File (C -1 CF), Tab 1. The agency responded,
in relevant part, that it had reinstated the appellant effective April 14, 2000;
calculated his back pay and benefits for each year from 2000 through 2015; and3
paid him back pay in the amounts of $540 for 2001; $1,199 for 2008; and $4,258 for
2010; for a total of $5,997. C-1 CF, Tab 26 at 5-53. The agency argued that the
appellant was not entitled to any more back pay because, “for all other years, he
either earned more money in the military than he would have at the USPS,
including all forms of pay: base pay, overtime, penalty overtime, night differential,
and Sunday premium, or failed to provide the documentation necessary for the
Agency and Board to make a proper determination[.]” Id. at 5.
In the December 10, 2021 compliance initial decision, the administrative
judge found that the agency had complied with its obligation to cancel the
appellant’s removal, retroactively reinstate him, and properly calculate the total
amount of pay he would have received during the back pay period from April 14,
2001, through January 22, 2015.3 CID at 4-7. However, he found the agency
remained in noncompliance to the extent it: (1) failed to properly pay the appellant
for the military leave to which he would have been entitled while on active duty
from April 14, 2000, to September 29, 2001; (2) improperly offset from the
appellant’s lost wages the amount he received in Basic Allowance for Subsistence
(BAS), Basic Allowance for Housing (BAH), and combat pay while serving on
active duty in the military; (3) improperly denied him back pay based on
insufficient evidence regarding his outside earnings or mitigation efforts for certain
periods; (4) failed to properly restore his sick and annual leave hours; and (5) failed
to properly restore his Thrift Savings Plan (TSP) account. CID at 5-15. The
administrative judge ordered the agency to pay the appellant the proper amount of
3 The administrative judge noted that, although the appellant was reinstated to the
agency’s employment rolls, he did not return to work between the date the agency
processed the reinstatement in January 2014 and January 23, 2015, because he remained
on active-duty military service, and he did not return to work after January 23, 2015, due
to his own volition, until January 6, 2020, when he reported to work for 1 day and then
requested to retire. CID at 4-5. The administrative judge found that the appellant was not
entitled to any back pay for the period from January 23, 2015, to May 15, 2020 (the date
the record closed on all issues except whether the appellant mitigated his potential
damages for that period). CID at 5-6.4
back pay and benefits, with interest, and to provide him with an explanation of its
updated back pay calculations. CID at 15-16. The administrative judge informed
both parties that they could file a petition for review of the compliance initial
decision no later than January 14, 2022, if they disagreed with the findings therein.
CID at 17-18.
On January 21, 2022, the Board issued an acknowledgment order advising
the parties that, as neither party had filed any submission within the applicable time
period, the administrative judge’s finding of noncompliance had become final.
Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-X-1,
Compliance Referral File (CRF), Tab 1 at 1-2. The acknowledgment order further
advised that the Board would render a final decision on the issues of compliance
and directed the agency to submit evidence showing that it had complied with all
actions identified in the compliance initial decision. Id. at 3. On February 7, 2022,
the agency notified the Board that it had taken initial steps towards compliance but
that additional time was required due to the complexity of the back pay award and
the long time period at issue. CRF, Tab 2.
On March 21, 2022, over two months past the January 14, 2022 deadline for
filing a petition for review, the appellant petitioned the Board for review of the
compliance initial decision, and the agency subsequently filed a cross petition for
review. Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-C-2,
Compliance Petition for Review File, Tabs 1, 4. In a March 3, 2023 Order, the
Board dismissed the appellant’s petition for review as untimely filed and held that,
in the absence of a timely petition for review, it had no basis to consider the
agency’s cross petition for review. Erickson v. U.S. Postal Service , MSPB Docket
No. AT-3443-07-0016-C-2, Order (Mar. 3, 2023). As the administrative judge’s
finding of partial noncompliance thus remained final, the Board ordered the agency
to comply with the outstanding compliance obligations identified in the compliance
initial decision and to submit in the compliance referral matter, MSPB Docket No.5
AT-3443-07-0016-X-1, satisfactory evidence of compliance within 60 days of the
date of the Order. Id., ¶¶ 12-14.
On May 2 and 15, 2023, the agency submitted compliance reports reflecting
that it recalculated the appellant’s back pay award pursuant to the compliance
initial decision. CRF, Tabs 6-7. The agency stated and provided evidence showing
that it had determined the appellant was entitled to an additional $142,019.09 in
gross back pay and that it paid him $67,254.46 ($142.019.09 minus $74,764.63 in
deductions for retirement, social security, Medicare, Federal tax, and TSP
contributions) by check dated March 29, 2023. CRF, Tab 6 at 2-4, 9-61, 96-97.
The agency also stated and provided evidence showing that it determined the
appellant was entitled to $119,591.56 in interest on the additional back pay
payment, which it calculated using the Back Pay Calculator on the Office of
Personnel Management (OPM) website. Id. at 7, 62-93. Additionally, the agency
stated and provided evidence showing that it restored to the appellant 2,454 hours
of annual leave and 1,267.71 hours of sick leave; restored his TSP contributions at
a rate of 6% and provided the full agency matching and automatic (1%)
contributions; paid him $2,984.93 ($4,706.78 gross pay minus $1,721.85 in
deductions) for 2 fiscal years (240 hours) of military leave by check dated
April 25, 2023; and paid him $8,452.29 in interest on the military leave payment by
check dated May 4, 2023. CRF, Tab 6 at 5-6, 100-101, 105, Tab 7.
In a response dated June 2, 2023, the appellant argued that the agency
remained in noncompliance based on various errors in its calculation of his back
pay award.4 CRF, Tab 8. The appellant stated that it was unfair he was only
4 The appellant also requested that sanctions be imposed against the agency for its
noncompliance. CRF, Tab 8 at 1. However, the Board lacks the authority to award
punitive damages or compensatory damages in compliance cases. Cunningham v.
Department of Veterans Affairs , 91 M.S.P.R. 523, ¶ 3 (2002). Although the Board has the
authority to impose sanctions for failure to comply with any order, the Board does not
award damages as a sanction. Id. Moreover, in view of our determination that the agency
is now in compliance, the imposition of sanctions would be inappropriate. Mercado v.
Office of Personnel Management , 115 M.S.P.R. 65, ¶ 8 (2010).6
allowed 20 days to respond to the agency’s compliance submission and requested
additional time. Id. at 2. He also sought the Board’s advice as to whether he could
deposit the checks he had received from the agency or whether this would indicate
that he agreed with the agency’s calculations. Id. at 6. The agency replied to the
appellant’s response, arguing that he had failed to identify any error in its
calculation of his back pay award. CRF, Tab 9.
In a February 12, 2024 Order, the Board allowed the appellant additional
time to respond to the agency’s prior submissions and noted that the Board does not
construe depositing or cashing a check for back pay as evidence that an appellant
agrees with the agency’s calculations.5 CRF, Tab 11 at 3. The Board further
ordered the agency to provide additional explanation and evidence regarding its
compliance. Id. at 3-5. The Board informed the appellant that he could respond to
the agency’s compliance submission within 30 days of service and that, if he did
not respond, the Board might assume he was satisfied and dismiss his petition for
enforcement. Id. at 5.
After seeking and obtaining an extension of time to respond, CRF,
Tabs 13-14, the agency responded to the Board’s February 12, 2024 Order on
April 15 and May 20, 2024. CRF, Tabs 15, 17. The agency provided extensive
additional information with detailed narrative responses and argued that it had
complied with all outstanding compliance obligations. CRF, Tabs 15, 17. The
appellant did not respond to the agency’s submissions.
On January 10, 2025, the Board issued an Order directing the agency to
provide specific additional information and evidence regarding the amounts of
military pay it offset from the appellant’s lost wages, proof that the $119,591.56
interest payment had been issued to the appellant, and additional details regarding
its compliance with its TSP restoration obligations. CRF, Tab 18 at 3-4. The
5 On April 23, 2024, the Board received a response from the appellant indicating that he
had not received the Board’s prior Order. CRF, Tab 16. The Office of the Clerk of the
Board mailed the appellant an additional courtesy copy of the Order on or about April 26,
2024.7
Board informed the appellant that he could respond to the agency’s compliance
submission within 14 days of service and that, if he did not respond, the Board may
assume he was satisfied and dismiss the petition for enforcement. Id. at 4. The
agency responded to the Order on January 25, 2025. CRF, Tab 19. The appellant
again did not respond to the agency’s submission.
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place the
appellant, as nearly as possible, in the situation he would have been in had the
wrongful personnel action not occurred. Vaughan v. Department of Agriculture ,
116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116,
¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir. 2006). The agency bears
the burden to prove compliance with the Board’s order by a preponderance of the
evidence.6 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An agency’s
assertions of compliance must include a clear explanation of its compliance actions
supported by documentary evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5. The
appellant may rebut the agency’s evidence of compliance by making specific,
nonconclusory, and supported assertions of continued noncompliance. Id.
As described above, the administrative judge found that the agency made
several errors in its calculation and payment of the appellant’s back pay award and
ordered the agency recalculate the award, provide him the correct back pay and
benefits with interest, and to provide him an explanation of its calculations. For the
reasons that follow, we find that the agency has corrected these issues and is now in
compliance.
Pay for Military Leave
The administrative judge found that, although the agency correctly
determined that the appellant was not entitled to lost wages prior to September 30,
6 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).8
2001, because he was performing active -duty military service during that time, the
agency failed to properly pay him for the military leave to which he would have
been entitled while on active duty from April 14, 2000, to September 29, 2001.
CID at 7-8. The administrative judge noted that, pursuant to the agency’s
Employee and Labor Relations Manual (ELM), the appellant was entitled to
15 days of paid military leave per fiscal year. CID at 7.
In its compliance submission, the agency stated and provided evidence
showing that it issued the appellant a check for 30 days (240 hours) of military
leave for fiscal years 2000 and 2001 on April 25, 2023, in the net amount of
$2,984.93 (gross payment of $4,706.78 minus deductions for his retirement, social
security, Medicare, Federal tax, and TSP contributions). CRF, Tab 7 at 5, 7-8. The
agency explained that it calculated the gross total payment using the hourly rates
the appellant would have earned during the relevant periods, which were
determined and submitted during the earlier compliance proceeding before the
administrative judge. Id. at 5 (citing C-1 CF, Tab 26 at 22). In a supplemental
compliance submission, the agency explained that it calculated the military leave
payment at an hourly rate of $19.4577 for 80 hours in fiscal year 2000 based on the
appellant’s hourly rate in pay period 20 of that year ($19.4577 x 80 hours =
$1,556.46) and at a rate of $19.6885 for 160 hours in fiscal year 2001 based on his
hourly rate in pay periods 19 (one week), 20 (two weeks), and 21 (one week)
($19.6885 x 160 hours = $3,150.16), resulting in the total gross payment of
$4,706.78. CRF, Tab 15 at 4-6, 19-20. The agency also submitted evidence
showing that it paid the appellant $8,452.29 in interest on the military leave
payment by check dated May 4, 2023. CRF, Tab 7 at 14-22.
In response, the appellant argued that the agency underpaid him for his
military leave because he was entitled to a higher hourly rate, more than 15 days of
military leave per year, and to military leave pay for 1999. CRF, Tab 8 at 3-5. He
also appeared to argue that the interest on the military pay should have been9
calculated at a higher rate and should not have stopped accruing on April 25, 2023.
Id. at 4.
As an initial matter, the appellant’s argument that he is entitled to military
leave for fiscal year 1999 is beyond the scope of the current proceeding. As
described above, the administrative judge found that the appellant was entitled to
pay for military leave only for the period from April 14, 2000, to September 29,
2001. CID at 6-7. Because the Board found that the appellant failed to show good
cause for his untimely filed petition for review of the compliance initial decision,
the administrative judge’s findings became final, and the Board will not revisit his
determination about the period for which the appellant must be paid for military
leave now.
The appellant’s challenges to the hourly rate the agency used to calculate his
military leave pay are likewise beyond the scope of this proceeding. In the
compliance initial decision, the administrative judge found that the agency proved
by preponderant evidence that its calculation of the amount the appellant would
have earned during the back pay period was correct. CID at 6-7. In relevant part,
this calculation included the agency’s determination that the appellant’s hourly rate
of pay would have been $19.46 from September 9 through November 18, 2000, and
$19.69 from November 19, 2000, through November 16, 2001.7 C-1 CF, Tab 26
at 22. Using these figures, the agency determined that the appellant was entitled to
a total gross payment of $4,706.78 for the 240 hours of military leave he would
have been entitled to in fiscal years 2000 and 2001, which represented an average
of $19.61 per hour. CRF, Tab 7, Tab 15 at 4-6. As the administrative judge’s
7 Moreover, in its supplemental compliance submission, the agency provided the Postal
Service Form 50 showing that the appellant’s base salary was $40,472.00 effective
September 9, 2000, and $40,952.00 effective November 18, 2000. CRF, Tab 15 at 19-20.
The agency explained that, pursuant to the ELM, an hourly salary rate is calculated by
dividing the annual salary by 2,080 and rounding it to 4 decimal places. CRF, Tab 15
at 5, 21. The agency properly did so here: the appellant’s annual salary of $40,472
divided by 2,080 hours is $19.4577, and his annual salary of $40,952 divided by 2,080
hours is $19.6885.10
finding that the agency’s calculations regarding the appellant’s hourly rate of pay
for each period became final, we will not now consider any challenge to those
calculations. In any event, we find no error in the agency’s determination
regarding the appropriate hourly rate to calculate his military leave pay or in the
gross total payment he received.
The appellant further argues that he should have received more than 15 days
of military leave per year for “law enforcement duty” and/or because he had a
“certain number of years” of service. CRF, Tab 8 at 5. Pursuant to ELM
section 517.41, full-time agency employees are entitled to 15 calendar days
(120 hours) of military leave per fiscal year. Nothing in the ELM provides for
additional hours of military leave for individuals with a particular number of years
of service. We note that ELM section 517.72 provides for 176 hours of military
leave per fiscal year if the military leave is requested for “law enforcement
purposes.” Here, however, there is no indication that the appellant’s military
service during fiscal years 2000 and 2001 was for “law enforcement purposes”;
rather, the military orders in the record reflect that he was ordered to “active duty
for special work (ADSW)” for the period October 1, 1999, through September 29,
2001. C-1 CF, Tab 21 at 153. Accordingly, we find no merit to his argument that
he was entitled to more than 15 days of military leave per fiscal year and conclude
that the agency properly paid him for the military leave he would have been entitled
to in fiscal years 2000 and 2001.
Finally, the appellant argues that the agency miscalculated the interest on
military leave payment by applying the incorrect interest rate and stopping interest
accrual on April 25, 2023. CRF, Tab 8 at 4. The agency submitted evidence
showing that it used OPM’s Back Pay Calculator and its preloaded quarterly
interest rates, which are provided by the Internal Revenue Service (IRS), to
calculate the interest owed on the $4,706.78 military leave payment beginning on
September 9, 2000, and accruing through April 25, 2023. CRF, Tab 7 at 15-22; see
OPM Back Pay Calculator, Help Guide, https://www.opm.gov/policy-data-11
oversight/pay-leave/back-pay-calculator/help/ (last visited Mar. 19, 2025). In
addition, the agency provided evidence showing that the check for the interest on
the military leave payment was issued on May 4, 2023, and mailed to the appellant
on May 15, 2023. CRF, Tab 7 at 13-14, Tab 8 at 1-2. Considering this evidence
and the lack of a specific, nonconclusory challenge to the agency’s calculations, we
find that the agency properly calculated and paid the appellant interest on the
military leave payment. We find no merit to the appellant’s general disagreement
with interest rates, which were provided by IRS and preloaded into OPM’s Back
Pay Calculator, or with the end date of the interest accrual, which the agency
properly calculated through a date less than 30 days before issuance of the interest
payment. See 5 U.S.C. § 5596(b)(2)(B)(i) (providing that, under the Back Pay Act,
interest must accrue through a date not more than 30 days before the date on which
the payment is made).
For the above reasons, we find the agency in compliance with its obligation
to pay the appellant for military leave he would have been entitled to for the period
of April 14, 2000, through September 29, 2001, and interest on that amount.
Improper Offsets and Denials based on Insufficient Evidence
The administrative judge additionally found the agency failed to correctly
calculate the back pay due to the appellant because it (1) improperly offset from the
back pay award the appellant’s receipt of BAS, BAH, and combat pay in
2001-2004, 2009, 2010, and 2012 through January 2015; and (2) improperly denied
the appellant back pay based on insufficient evidence regarding his earnings or
mitigation efforts from January 1 to December 31, 2006; January 1 to May 14,
2007; September 28, 2007, to January 27, 2008; November to December 2010; and
January 1 to December 31, 2011. CID at 8-11.
The agency asserts that it has recalculated the appellant’s back pay award
without offsetting his receipt of BAS, BAH, or combat pay, or excluding periods
for which it believed there was incomplete evidence regarding mitigation and
attempts to mitigate. CRF, Tabs 6, 17, 19. In support, the agency provided12
evidence and explanation showing that, based on the appellant’s historical rates of
pay previously approved by the administrative judge, he would have earned
$688,560.30 in gross pay had he worked at the agency during the back pay period
(excluding 2005 and May 15 to September 27, 2007, when he earned more from
military service than he would have made at the agency). CRF, Tab 6 at 3 n.2,
Tab 17 at 17-69; see also C-1 CF, Tab 26 at 22, CID at 6-7. From this total, the
agency deducted $525,432.93 in military earnings, which it calculated using the
amounts shown in the military pay chart provided by the appellant and
accompanying evidence for the periods September 30, 2001, through December 31,
2004; 2006; and January 1, 2008, through January 22, 2015. CRF, Tab 6
at 102-104, Tab 17 at 6-14, 69, Tab 19 (citing C-1 CF, Tab 6). The agency also
deducted $21,108.28 in prior payments made to him for military leave and the
original back pay payment.8 CRF, Tab 6 at 103. After these deductions, the agency
arrived at a gross total additional back pay payment of $142,019.09.9 CRF, Tab 17
at 5.
Following a careful review of the record, we are satisfied that the agency has
complied with its obligation to calculate the appellant’s outside earnings offset
without including any BAS, BAH, or combat pay, or excluding any periods for
insufficient evidence. The evidence reflects that, for years 2001 -2002, 2006, and
2008-2015, the agency offset only the appellant’s base pay or gross taxable income,
which do not include BAH, BAS, or combat pay. See Armed Forces’ Tax Guide,
Internal Revenue Service Publication 3 at 7,
8 The agency stated that the $21,108.28 in prior payments deducted from the total back
pay award includes a February 2014 lump sum payment in the gross amount of
$15,111.28 for military leave and the original back pay payment of $5,997. CRF, Tab 6
at 6, 103-04, C-2 CF, Tab 28 at 10. The appellant has not disputed that he received these
amounts.
9 From the $142,019.09 gross additional back pay award, the agency paid him $67,254.46
by check dated March 29, 2023, after deducting $74,764.63 for retirement contributions,
social security, Medicare, Federal taxes, and TSP contributions payment. CRF, Tab 17
at 16.13
https://www.irs.gov/pub/irs-pdf/p3.pdf (last visited Mar. 19, 2025); CRF, Tab 6
at 103-104; C-1 CF, Tab 24 at 504 (FITW-WAGE-YTD of $40,264.04 for 2001)10,
507 (FITW-WAGE-YTD of $43,630.56 for 2002), 541 (W-2 Box 1 of $7,216.92 in
2006), 539 (W-2 Box 1 of $46,465.60 in 2008), 538 (W-2 Box 1 of $77,380.29 in
2009), 537 (W-2 Box 1 of $58,84.91 in 2010), 536 (W-2 Box 1 of $4,559.18 for
2011), 535 (W-2 Box 1 of $21,162.75 for 2012), 445-469 (leave and earnings
statements base pay of $80,920.80 for 2013), 470-494 (leave and earnings
statements base pay of $81,730.80 for 2014), 495-498 (leave and earnings base pay
of $5,273.90 for January and February 2015).11 For years 2003 and 2004, the
agency offset the amount shown on the Master Military Pay Account (MMPA)
printouts as FICA -WAG-YTD, which appears to be the amount of the appellant’s
military pay that was subject to Federal Insurance Contribution Act (FICA)
withholdings. See CRF, Tab 6 at 103; C-1 CF, Tab 24 at 511 (FICA -WAG-YTD
of $43,506.00 for 2003), 516 (FICA-WAG-YTD of $46,118.42 for 2004). The
appellant did not earn any BAS or BAH in 2003 or 2004, but did earn combat pay,
which does not appear to be subject to FICA (though other pay received in a combat
zone may be). See id.; Department of Defense, Financial Management Regulation,
Volume 7A, Ch. 45, Sec. 2.1-2.2 (March 2023), https://comptroller
.defense.gov/Portals/45/documents/fmr/current/07a/07a_45.pdf. Although it is
unclear why the appellant informed the agency that his gross military pay was the
amount shown at FITW-WAGE-YTD on the MMPA printouts for 2001 and 2002,
but the amount shown at FICA-WAG-YTD for 2003 and 2004, we agree with the
agency that it was entitled to rely on those figures pursuant to the administrative
judge’s order to give the appellant the benefit of the doubt. C -1 CF, Tab 24 at 7,
504, 507, 511, 516; CRF, Tab 6 at 103-104, Tab 19 at 4-7; CID at 9-10. In
10 Outside earnings for 2001 were prorated to $12,635 as the back pay period included
only September 30 to December 31, 2001. CRF, Tab 6 at 102.
11 FITW-WAGE-YTD refers to year-to-date wages that are subject to federal income tax
withholding. W-2 Box 1 contains the amount of taxable “wages, tips, or other
compensation” received.14
addition, the appellant did not respond to the agency’s May 2024 or January 2025
compliance submissions clarifying its recalculation of his back pay award without
offsets and exclusions, and we therefore assume he is satisfied with this aspect of
the agency’s compliance. See Baumgartner v. Department of Housing and Urban
Development, 111 M.S.P.R. 86, ¶ 9 (2009).
The agency further demonstrated that the appellant was entitled to
$119,591.56 in interest on the additional back pay payment and that it paid him this
amount by check dated April 13, 2023. CRF, Tab 6 at 7, 62-93, Tab 19 at 51-61.
The agency’s evidence reflects that it utilized the OPM Back Pay Calculator and
properly calculated the interest through March 29, 2023, less than 30 days before
issuance of the payment. See 5 U.S.C. § 5596(b)(2)(B)(i). The appellant has not
disputed this interest payment, and we therefore assume he is satisfied with it.
Sick and Annual Leave
The administrative judge also found that the agency failed to demonstrate
compliance with its obligation to restore to the appellant the annual leave he would
have earned during the periods he was not performing active duty military service
from September 30, 2001, to January 22, 2015, and the sick leave he would have
earned for the entire period. CID at 13-14.
In its May 2023 compliance submission, the agency stated and provided
evidence showing that it had adjusted the appellant’s sick leave balance from
4 hours to 1,272.71 hours and that it adjusted his annual leave balance from
176 hours to 2,630 hours. CRF, Tab 6 at 5, 100 -01. The agency stated that the
appellant arguably received an “overpayment” of annual leave because the
compliance initial decision only required the agency to restore annual leave for the
periods he was not on active duty in the military, but “such adjustments are
automatically performed as a result of the back pay process at the Postal Service.”
Id. at 6 n.1. In response, the appellant generally disagreed with the agency’s
annual and sick leave calculations, stating “[t]here seems to be a huge discrepancy15
in the annual leave and sick leave,” but did not identify any specific inaccuracy.
CRF, Tab 8 at 4.
In its April 2024 supplemental compliance submission, the agency explained
that employees earn 4 hours of sick leave for every 80 hours they were paid during
a leave year. CRF, Tab 15 at 7-10. The agency set forth the number of hours the
appellant worked during each year of the back pay period and then divided that
number by 80 to ascertain the number of 80 -hour increments (“leave increments”)
he worked for each leave year. Id. After performing this calculation for each leave
year, the agency determined that the appellant was entitled to 4 hours of sick leave
for 314 leave increments of back pay period, which totaled 1,256 hours of sick
leave. Id. at 9-10. The agency also credited the appellant with 12.71 hours of sick
leave that he had already earned prior to his separation in 2000, resulting in a total
restoration of 1,267.71 hours of sick leave. Id. The appellant did not respond.
We find that the agency has demonstrated compliance with its obligation to
calculate and restore to the appellant the hours of sick leave he would have earned
at the agency from September 30, 2001, to January 22, 2015. As described above,
the agency has properly restored to the appellant 4 hours of sick leave for every
80 hours he would have worked during this period and credited him with the sick
leave he had accrued prior to his separation, for a total restoration of
1,267.71 hours of sick leave. In addition, the appellant did not respond to the
agency’s April 2024 submission describing its sick leave restoration calculations,
and we therefore assume he is satisfied. See Baumgartner, 111 M.S.P.R. 86, ¶ 9.
We additionally find that the agency is in compliance with its obligation to
restore the appellant’s annual leave. Although the agency did not provide a
narrative explanation detailing its calculations, it is evident that the agency
restored far more hours of annual leave to the appellant than it was required to. As
noted above, the agency was only required to restore to the appellant the annual
leave he would have earned during the periods he was not serving on active duty in
the military, which was only several years of the nearly 14 -year back pay period.16
CID at 12-13 (noting that the appellant was on active duty from April 2, 1999, to
December 31, 2005; May 15 to September 27, 2007; January 28, 2008, to
September 12, 2010; May 21, 2011, to October 1, 2012; and October 2, 2012, to
January 23, 2015). However, the agency restored to him 2,460 hours of annual
leave, which represents an average of 7.83 hours of annual leave restored for each
of the 314 “leave increments” the appellant would have accrued had he been
employed by the agency throughout the back pay period. CRF, Tab 6 at 100-101,
Tab 15 at 8-10. As the appellant was entitled to 6 hours of annual leave per pay
period until approximately November 2001, at which time he became entitled to
8 hours of annual leave per pay period, C-1 CF, Tab 26 at 63-98, the agency’s
restoration of 2,460 hours represents the full amount of annual leave he would have
earned had he worked at the agency throughout the back pay period, including
those periods when he was on active duty. Thus, the agency exceeded its annual
leave restoration obligation. In light of this evidence, and because the appellant
has not identified any specific inaccuracy in the agency’s restoration of his annual
leave, we are satisfied with the agency’s compliance.
TSP Account
Before the administrative judge, the agency argued that the appellant was not
entitled to any restored TSP benefit because TSP was available in the military, the
appellant did not contribute to his TSP while in the military, and it would be
speculative to assume the appellant would have contributed had he been employed
by the agency. C-1 CF, Tab 26 at 45-46. The administrative judge found, however,
that the agency presented no evidence that active -duty service members received a
comparable benefit during the back pay period and that the appellant was entitled to
a presumption in his favor in light of the purpose of USERRA. CID at 14-15.
Accordingly, the administrative judge concluded that the agency had not satisfied
its compliance obligations with regard to TSP contributions and ordered it to do so.
CID at 14-15.17
Pursuant to the Federal Retirement Thrift Investment Board (FRTIB)
regulations, the employing agency must give a reinstated employee who would
have been eligible to contribute to his TSP account but for the erroneous separation
the opportunity to submit a new contribution election for purposes of makeup
contributions or to reinstate the contribution election he had on file at the time of
his separation for makeup contributions. 5 C.F.R. § 1605.13(a)(2). The
regulations also provide that the employee’s makeup contributions must be
computed before the back pay award is paid, deducted from the back pay, and
submitted to the TSP record keeper; must not cause the participant to exceed the
annual contribution limit(s); and must be accompanied by attributable agency
matching and automatic (1%) contributions. 5 C.F.R. § 1605.13(c).
In its May 2023 compliance submission, the agency asserted that it restored
the appellant’s TSP contributions pursuant to his prior TSP election of 6% full
agency matching. CRF, Tab 6 at 6. In support, the agency provided a Back Pay
Report reflecting deductions of 6% from each pay period of the back pay period,
resulting in a total of $35,754.76 deducted from his March 29, 2023 back pay check
for “TSP Regular.” Id. at 9-97. The appellant responded that his TSP “was not
contributed properly” and that he “sent multiple documents to the Agency
specifically explaining the amount to contribute in order to get max savings on
taxes, and, to also increase what the agency would have to contribute to as well, but
they refused.” CRF, Tab 8 at 4.
In its April 2024 supplemental compliance submission, the agency provided
evidence showing that the appellant requested by TSP Election Form TSP-1 dated
February 28, 2022, a Roth (After-Tax) TSP contribution of a $550 per pay period
for the back pay period. CRF, Tab 15 at 11, 38. However, as agency counsel
informed him by letter dated March 25, 2022, this election could not be
implemented because the Roth option was not available before June 2, 2012, and
his election of $550 per pay period exceeded the contribution limits for 2001 -2005
and the total back pay owed to him. Id. at 36. The letter further informed him that18
the agency would apply the 6% election he last made while employed at the agency
unless he submitted a new TSP-1 that could be effectively implemented. Id. at 36.
The agency stated that the appellant never responded to this letter or clarified his
election, so the agency proceeded to use his prior election of a 6% TSP
contribution. Id. at 11-12; see id. at 31-32. The agency also provided a payroll
journal and spreadsheet showing that it made 314 payments of the automatic 1% of
his basic pay and 4% agency match to the appellant’s TSP account. CRF, Tab 15
at 12-13, 40-85. The appellant did not respond to the agency’s submission.
In its final compliance submission in January 2025, the agency stated and
provided an affidavit from a Lead Systems Accountant in Payroll Services
confirming that the proper amount of TSP contributions was credited and reported
to the TSP agency. CRF, Tab 19 at 7, 10-11. The Lead Systems Accountant
explained that the appellant’s elected TSP contribution amount, along with the
agency’s matching and 1% automatic contributions, were transmitted to the TSP
agency on the transmission date for his back pay award on April 14, 2023. Id.
at 10. She further explained that, as reflected on the payroll journal, the deductions
were sent on a pay period by pay period basis for every individual pay period
during the back pay timeframe so that the TSP agency could process the retroactive
breakage calculations as if the monies had been received at that time. Id. at 11; see
id. at 12-50 (pay roll journal). She attested that, once the agency transmits the
retroactive TSP contributions, “any and all breakage calculations are then
performed solely by the TSP agency” and that “any inquiries regarding how and
when these calculations were performed would need to be directed to the current
TSP provider.” Id. She concluded that the agency followed proper procedures in
restoring the appellant’s TSP account. Id. The appellant again did not respond to
the agency’s submission.
Based on the above-discussed evidence and explanation provided by the
agency, we find that it is in compliance with its obligation to restore the appellant’s
TSP account. Although the appellant argued in response to the agency’s first19
compliance submission that the agency failed to correctly apply his new
contribution election, it was his failure to submit a corrected TSP -1 election form
after the agency notified him that his February 28, 2022 election could not be
implemented that forced the agency to use his prior election. See Coe v. U.S.
Postal Service, 101 M.S.P.R. 575, ¶¶ 13-14 (holding that, when an appellant does
not cooperate with the agency’s efforts to achieve compliance, the Board may deny
the petition for enforcement), aff’d, 208 F. App’x 932 (Fed. Cir. 2006). Moreover,
because the appellant did not respond to the agency’s subsequent compliance
submissions, we assume that he is satisfied with the actions it has taken regarding
his TSP contributions. See Baumgartner , 111 M.S.P.R. 86, ¶ 9.
CONCLUSION
In light of the foregoing, we find that the agency is now in compliance with
the outstanding compliance obligations identified in the compliance initial decision
and dismiss the petition for enforcement and the petition for review. 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. 20
NOTICE OF APPEAL RIGHTS12
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.21
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a22
courtappointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s23
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.24
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.25 | Erickson_RichardAT-3443-07-0016-C-2__Final_Order.pdf | 2025-03-20 | RICHARD ERICKSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-3443-07-0016-C-1, March 20, 2025 | AT-3443-07-0016-X-1; AT-3443-07-0016-C-2 | NP |
38 | https://www.mspb.gov/decisions/nonprecedential/Erickson_RichardAT-3443-07-0016-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD ERICKSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBERS
AT-3443-07-0016-X-1
AT-3443-07-0016-C-2
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Erickson , Cape Coral, Florida, pro se.
Sherry Streicker , Esquire, Roderick Eves , Esquire, and Theresa M. Gegen ,
Esquire, St. Louis, Missouri, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
In a December 10, 2021 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s December 31, 2013
Opinion and Order, which granted the appellant’s request for corrective action
under the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA) to the extent the agency failed to demonstrate that it provided the
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant the correct amount of back pay and benefits.2 Erickson v. U.S. Postal
Service, MSPB Docket No. AT-3443-07-0016-C-2, Compliance File (C-2 CF),
Compliance Initial Decision (CID); Erickson v. U.S. Postal Service , 120 M.S.P.R.
468 (2013). Accordingly, the administrative judge granted the appellant’s petition
for enforcement and ordered the agency to provide him the proper amount of back
pay and benefits, with interest, and an explanation of its updated back pay
calculations. CID at 15. 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
In April 2000, the agency removed the appellant, who had been absent from
work for lengthy periods while serving on active duty with the U.S. Army National
Guard Reserve, for excessive use of military leave. Erickson, 120 M.S.P.R. 468,
¶ 2. After his removal, he re-enlisted with the National Guard and remained on
active duty until December 31, 2005. Id.
In 2006, the appellant appealed his removal to the Board, arguing that the
agency violated the nondiscrimination provision of USERRA, 38 U.S.C. § 4311.
Id., ¶ 3. Following two remand orders from the U.S. Court of Appeals for the
Federal Circuit, which found that the agency violated 38 U.S.C. § 4311 when it
fired the appellant based on his use of military leave and that he did not abandon his
civilian career or waive his protections under USERRA, the administrative judge
issued a December 14, 2012 remand initial decision granting the appellant’s
request for corrective action under USERRA and ordering the agency to cancel his
removal, reinstate him, and compensate him for any loss of wages or benefits.
Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-M-5,
2 The December 10, 2021 compliance initial decision’s finding of partial noncompliance
became final after neither party filed a timely petition for review with the Board. See
Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-C-2, Order
(Mar. 3, 2023) (dismissing the appellant’s petition for review of the compliance initial
decision as untimely filed without good cause shown).2
Remand Appeal File, Tab 18, Remand Initial Decision; see Erickson v. U.S. Postal
Service, 636 F.3d 1353, 1357 -59 (Fed. Cir. 2011); Erickson v. U.S. Postal Service ,
571 F.3d 1364, 1369-70 (Fed. Cir. 2009). The agency petitioned for review of the
remand initial decision.
In the December 31, 2013 Opinion and Order, the Board denied the agency’s
petition for review and affirmed the remand initial decision. Erickson,
120 M.S.P.R. 468, ¶ 1. In relevant part, the Board agreed with the administrative
judge that the appellant was entitled to reinstatement as a remedy for agency’s
violation of 38 U.S.C. § 4311. Id., ¶ 14. The Board further found that the
appellant’s failure to timely apply for reemployment did not preclude reinstatement
and that his post-removal military service did not limit the period of time for which
he had to be reinstated. Id., ¶¶ 15-16. The Board also agreed with the
administrative judge that the appellant was entitled under 38 U.S.C. § 4324(c)(2) to
lost wages and benefits suffered as a result of the agency’s violation of
section 4311. Id., ¶ 17. The Board noted that the general provisions of the Back
Pay Act do not control the remedy that appellants may receive should they succeed
on the merits of their USERRA claims and advised that, because a service member
is expected to exercise reasonable diligence to mitigate economic damages suffered
as a result of an employer’s violation of USERRA, the award of lost wages and
benefits must be offset by the amount the appellant should have reasonably earned
during the relevant period. Id. The Board again ordered the agency to cancel the
appellant’s removal, retroactively reinstate him, and pay him the correct amount of
wages and benefits lost as a result of the removal action as required under
38 U.S.C. § 4324(c)(2). Id.
On March 1, 2019, the appellant filed a petition for enforcement of the
Board’s Opinion and Order. Erickson v. U.S. Postal Service , MSPB Docket No.
AT-3443-07-0016-C-1, Compliance File (C -1 CF), Tab 1. The agency responded,
in relevant part, that it had reinstated the appellant effective April 14, 2000;
calculated his back pay and benefits for each year from 2000 through 2015; and3
paid him back pay in the amounts of $540 for 2001; $1,199 for 2008; and $4,258 for
2010; for a total of $5,997. C-1 CF, Tab 26 at 5-53. The agency argued that the
appellant was not entitled to any more back pay because, “for all other years, he
either earned more money in the military than he would have at the USPS,
including all forms of pay: base pay, overtime, penalty overtime, night differential,
and Sunday premium, or failed to provide the documentation necessary for the
Agency and Board to make a proper determination[.]” Id. at 5.
In the December 10, 2021 compliance initial decision, the administrative
judge found that the agency had complied with its obligation to cancel the
appellant’s removal, retroactively reinstate him, and properly calculate the total
amount of pay he would have received during the back pay period from April 14,
2001, through January 22, 2015.3 CID at 4-7. However, he found the agency
remained in noncompliance to the extent it: (1) failed to properly pay the appellant
for the military leave to which he would have been entitled while on active duty
from April 14, 2000, to September 29, 2001; (2) improperly offset from the
appellant’s lost wages the amount he received in Basic Allowance for Subsistence
(BAS), Basic Allowance for Housing (BAH), and combat pay while serving on
active duty in the military; (3) improperly denied him back pay based on
insufficient evidence regarding his outside earnings or mitigation efforts for certain
periods; (4) failed to properly restore his sick and annual leave hours; and (5) failed
to properly restore his Thrift Savings Plan (TSP) account. CID at 5-15. The
administrative judge ordered the agency to pay the appellant the proper amount of
3 The administrative judge noted that, although the appellant was reinstated to the
agency’s employment rolls, he did not return to work between the date the agency
processed the reinstatement in January 2014 and January 23, 2015, because he remained
on active-duty military service, and he did not return to work after January 23, 2015, due
to his own volition, until January 6, 2020, when he reported to work for 1 day and then
requested to retire. CID at 4-5. The administrative judge found that the appellant was not
entitled to any back pay for the period from January 23, 2015, to May 15, 2020 (the date
the record closed on all issues except whether the appellant mitigated his potential
damages for that period). CID at 5-6.4
back pay and benefits, with interest, and to provide him with an explanation of its
updated back pay calculations. CID at 15-16. The administrative judge informed
both parties that they could file a petition for review of the compliance initial
decision no later than January 14, 2022, if they disagreed with the findings therein.
CID at 17-18.
On January 21, 2022, the Board issued an acknowledgment order advising
the parties that, as neither party had filed any submission within the applicable time
period, the administrative judge’s finding of noncompliance had become final.
Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-X-1,
Compliance Referral File (CRF), Tab 1 at 1-2. The acknowledgment order further
advised that the Board would render a final decision on the issues of compliance
and directed the agency to submit evidence showing that it had complied with all
actions identified in the compliance initial decision. Id. at 3. On February 7, 2022,
the agency notified the Board that it had taken initial steps towards compliance but
that additional time was required due to the complexity of the back pay award and
the long time period at issue. CRF, Tab 2.
On March 21, 2022, over two months past the January 14, 2022 deadline for
filing a petition for review, the appellant petitioned the Board for review of the
compliance initial decision, and the agency subsequently filed a cross petition for
review. Erickson v. U.S. Postal Service , MSPB Docket No. AT-3443-07-0016-C-2,
Compliance Petition for Review File, Tabs 1, 4. In a March 3, 2023 Order, the
Board dismissed the appellant’s petition for review as untimely filed and held that,
in the absence of a timely petition for review, it had no basis to consider the
agency’s cross petition for review. Erickson v. U.S. Postal Service , MSPB Docket
No. AT-3443-07-0016-C-2, Order (Mar. 3, 2023). As the administrative judge’s
finding of partial noncompliance thus remained final, the Board ordered the agency
to comply with the outstanding compliance obligations identified in the compliance
initial decision and to submit in the compliance referral matter, MSPB Docket No.5
AT-3443-07-0016-X-1, satisfactory evidence of compliance within 60 days of the
date of the Order. Id., ¶¶ 12-14.
On May 2 and 15, 2023, the agency submitted compliance reports reflecting
that it recalculated the appellant’s back pay award pursuant to the compliance
initial decision. CRF, Tabs 6-7. The agency stated and provided evidence showing
that it had determined the appellant was entitled to an additional $142,019.09 in
gross back pay and that it paid him $67,254.46 ($142.019.09 minus $74,764.63 in
deductions for retirement, social security, Medicare, Federal tax, and TSP
contributions) by check dated March 29, 2023. CRF, Tab 6 at 2-4, 9-61, 96-97.
The agency also stated and provided evidence showing that it determined the
appellant was entitled to $119,591.56 in interest on the additional back pay
payment, which it calculated using the Back Pay Calculator on the Office of
Personnel Management (OPM) website. Id. at 7, 62-93. Additionally, the agency
stated and provided evidence showing that it restored to the appellant 2,454 hours
of annual leave and 1,267.71 hours of sick leave; restored his TSP contributions at
a rate of 6% and provided the full agency matching and automatic (1%)
contributions; paid him $2,984.93 ($4,706.78 gross pay minus $1,721.85 in
deductions) for 2 fiscal years (240 hours) of military leave by check dated
April 25, 2023; and paid him $8,452.29 in interest on the military leave payment by
check dated May 4, 2023. CRF, Tab 6 at 5-6, 100-101, 105, Tab 7.
In a response dated June 2, 2023, the appellant argued that the agency
remained in noncompliance based on various errors in its calculation of his back
pay award.4 CRF, Tab 8. The appellant stated that it was unfair he was only
4 The appellant also requested that sanctions be imposed against the agency for its
noncompliance. CRF, Tab 8 at 1. However, the Board lacks the authority to award
punitive damages or compensatory damages in compliance cases. Cunningham v.
Department of Veterans Affairs , 91 M.S.P.R. 523, ¶ 3 (2002). Although the Board has the
authority to impose sanctions for failure to comply with any order, the Board does not
award damages as a sanction. Id. Moreover, in view of our determination that the agency
is now in compliance, the imposition of sanctions would be inappropriate. Mercado v.
Office of Personnel Management , 115 M.S.P.R. 65, ¶ 8 (2010).6
allowed 20 days to respond to the agency’s compliance submission and requested
additional time. Id. at 2. He also sought the Board’s advice as to whether he could
deposit the checks he had received from the agency or whether this would indicate
that he agreed with the agency’s calculations. Id. at 6. The agency replied to the
appellant’s response, arguing that he had failed to identify any error in its
calculation of his back pay award. CRF, Tab 9.
In a February 12, 2024 Order, the Board allowed the appellant additional
time to respond to the agency’s prior submissions and noted that the Board does not
construe depositing or cashing a check for back pay as evidence that an appellant
agrees with the agency’s calculations.5 CRF, Tab 11 at 3. The Board further
ordered the agency to provide additional explanation and evidence regarding its
compliance. Id. at 3-5. The Board informed the appellant that he could respond to
the agency’s compliance submission within 30 days of service and that, if he did
not respond, the Board might assume he was satisfied and dismiss his petition for
enforcement. Id. at 5.
After seeking and obtaining an extension of time to respond, CRF,
Tabs 13-14, the agency responded to the Board’s February 12, 2024 Order on
April 15 and May 20, 2024. CRF, Tabs 15, 17. The agency provided extensive
additional information with detailed narrative responses and argued that it had
complied with all outstanding compliance obligations. CRF, Tabs 15, 17. The
appellant did not respond to the agency’s submissions.
On January 10, 2025, the Board issued an Order directing the agency to
provide specific additional information and evidence regarding the amounts of
military pay it offset from the appellant’s lost wages, proof that the $119,591.56
interest payment had been issued to the appellant, and additional details regarding
its compliance with its TSP restoration obligations. CRF, Tab 18 at 3-4. The
5 On April 23, 2024, the Board received a response from the appellant indicating that he
had not received the Board’s prior Order. CRF, Tab 16. The Office of the Clerk of the
Board mailed the appellant an additional courtesy copy of the Order on or about April 26,
2024.7
Board informed the appellant that he could respond to the agency’s compliance
submission within 14 days of service and that, if he did not respond, the Board may
assume he was satisfied and dismiss the petition for enforcement. Id. at 4. The
agency responded to the Order on January 25, 2025. CRF, Tab 19. The appellant
again did not respond to the agency’s submission.
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place the
appellant, as nearly as possible, in the situation he would have been in had the
wrongful personnel action not occurred. Vaughan v. Department of Agriculture ,
116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy , 100 M.S.P.R. 116,
¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir. 2006). The agency bears
the burden to prove compliance with the Board’s order by a preponderance of the
evidence.6 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An agency’s
assertions of compliance must include a clear explanation of its compliance actions
supported by documentary evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5. The
appellant may rebut the agency’s evidence of compliance by making specific,
nonconclusory, and supported assertions of continued noncompliance. Id.
As described above, the administrative judge found that the agency made
several errors in its calculation and payment of the appellant’s back pay award and
ordered the agency recalculate the award, provide him the correct back pay and
benefits with interest, and to provide him an explanation of its calculations. For the
reasons that follow, we find that the agency has corrected these issues and is now in
compliance.
Pay for Military Leave
The administrative judge found that, although the agency correctly
determined that the appellant was not entitled to lost wages prior to September 30,
6 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).8
2001, because he was performing active -duty military service during that time, the
agency failed to properly pay him for the military leave to which he would have
been entitled while on active duty from April 14, 2000, to September 29, 2001.
CID at 7-8. The administrative judge noted that, pursuant to the agency’s
Employee and Labor Relations Manual (ELM), the appellant was entitled to
15 days of paid military leave per fiscal year. CID at 7.
In its compliance submission, the agency stated and provided evidence
showing that it issued the appellant a check for 30 days (240 hours) of military
leave for fiscal years 2000 and 2001 on April 25, 2023, in the net amount of
$2,984.93 (gross payment of $4,706.78 minus deductions for his retirement, social
security, Medicare, Federal tax, and TSP contributions). CRF, Tab 7 at 5, 7-8. The
agency explained that it calculated the gross total payment using the hourly rates
the appellant would have earned during the relevant periods, which were
determined and submitted during the earlier compliance proceeding before the
administrative judge. Id. at 5 (citing C-1 CF, Tab 26 at 22). In a supplemental
compliance submission, the agency explained that it calculated the military leave
payment at an hourly rate of $19.4577 for 80 hours in fiscal year 2000 based on the
appellant’s hourly rate in pay period 20 of that year ($19.4577 x 80 hours =
$1,556.46) and at a rate of $19.6885 for 160 hours in fiscal year 2001 based on his
hourly rate in pay periods 19 (one week), 20 (two weeks), and 21 (one week)
($19.6885 x 160 hours = $3,150.16), resulting in the total gross payment of
$4,706.78. CRF, Tab 15 at 4-6, 19-20. The agency also submitted evidence
showing that it paid the appellant $8,452.29 in interest on the military leave
payment by check dated May 4, 2023. CRF, Tab 7 at 14-22.
In response, the appellant argued that the agency underpaid him for his
military leave because he was entitled to a higher hourly rate, more than 15 days of
military leave per year, and to military leave pay for 1999. CRF, Tab 8 at 3-5. He
also appeared to argue that the interest on the military pay should have been9
calculated at a higher rate and should not have stopped accruing on April 25, 2023.
Id. at 4.
As an initial matter, the appellant’s argument that he is entitled to military
leave for fiscal year 1999 is beyond the scope of the current proceeding. As
described above, the administrative judge found that the appellant was entitled to
pay for military leave only for the period from April 14, 2000, to September 29,
2001. CID at 6-7. Because the Board found that the appellant failed to show good
cause for his untimely filed petition for review of the compliance initial decision,
the administrative judge’s findings became final, and the Board will not revisit his
determination about the period for which the appellant must be paid for military
leave now.
The appellant’s challenges to the hourly rate the agency used to calculate his
military leave pay are likewise beyond the scope of this proceeding. In the
compliance initial decision, the administrative judge found that the agency proved
by preponderant evidence that its calculation of the amount the appellant would
have earned during the back pay period was correct. CID at 6-7. In relevant part,
this calculation included the agency’s determination that the appellant’s hourly rate
of pay would have been $19.46 from September 9 through November 18, 2000, and
$19.69 from November 19, 2000, through November 16, 2001.7 C-1 CF, Tab 26
at 22. Using these figures, the agency determined that the appellant was entitled to
a total gross payment of $4,706.78 for the 240 hours of military leave he would
have been entitled to in fiscal years 2000 and 2001, which represented an average
of $19.61 per hour. CRF, Tab 7, Tab 15 at 4-6. As the administrative judge’s
7 Moreover, in its supplemental compliance submission, the agency provided the Postal
Service Form 50 showing that the appellant’s base salary was $40,472.00 effective
September 9, 2000, and $40,952.00 effective November 18, 2000. CRF, Tab 15 at 19-20.
The agency explained that, pursuant to the ELM, an hourly salary rate is calculated by
dividing the annual salary by 2,080 and rounding it to 4 decimal places. CRF, Tab 15
at 5, 21. The agency properly did so here: the appellant’s annual salary of $40,472
divided by 2,080 hours is $19.4577, and his annual salary of $40,952 divided by 2,080
hours is $19.6885.10
finding that the agency’s calculations regarding the appellant’s hourly rate of pay
for each period became final, we will not now consider any challenge to those
calculations. In any event, we find no error in the agency’s determination
regarding the appropriate hourly rate to calculate his military leave pay or in the
gross total payment he received.
The appellant further argues that he should have received more than 15 days
of military leave per year for “law enforcement duty” and/or because he had a
“certain number of years” of service. CRF, Tab 8 at 5. Pursuant to ELM
section 517.41, full-time agency employees are entitled to 15 calendar days
(120 hours) of military leave per fiscal year. Nothing in the ELM provides for
additional hours of military leave for individuals with a particular number of years
of service. We note that ELM section 517.72 provides for 176 hours of military
leave per fiscal year if the military leave is requested for “law enforcement
purposes.” Here, however, there is no indication that the appellant’s military
service during fiscal years 2000 and 2001 was for “law enforcement purposes”;
rather, the military orders in the record reflect that he was ordered to “active duty
for special work (ADSW)” for the period October 1, 1999, through September 29,
2001. C-1 CF, Tab 21 at 153. Accordingly, we find no merit to his argument that
he was entitled to more than 15 days of military leave per fiscal year and conclude
that the agency properly paid him for the military leave he would have been entitled
to in fiscal years 2000 and 2001.
Finally, the appellant argues that the agency miscalculated the interest on
military leave payment by applying the incorrect interest rate and stopping interest
accrual on April 25, 2023. CRF, Tab 8 at 4. The agency submitted evidence
showing that it used OPM’s Back Pay Calculator and its preloaded quarterly
interest rates, which are provided by the Internal Revenue Service (IRS), to
calculate the interest owed on the $4,706.78 military leave payment beginning on
September 9, 2000, and accruing through April 25, 2023. CRF, Tab 7 at 15-22; see
OPM Back Pay Calculator, Help Guide, https://www.opm.gov/policy-data-11
oversight/pay-leave/back-pay-calculator/help/ (last visited Mar. 19, 2025). In
addition, the agency provided evidence showing that the check for the interest on
the military leave payment was issued on May 4, 2023, and mailed to the appellant
on May 15, 2023. CRF, Tab 7 at 13-14, Tab 8 at 1-2. Considering this evidence
and the lack of a specific, nonconclusory challenge to the agency’s calculations, we
find that the agency properly calculated and paid the appellant interest on the
military leave payment. We find no merit to the appellant’s general disagreement
with interest rates, which were provided by IRS and preloaded into OPM’s Back
Pay Calculator, or with the end date of the interest accrual, which the agency
properly calculated through a date less than 30 days before issuance of the interest
payment. See 5 U.S.C. § 5596(b)(2)(B)(i) (providing that, under the Back Pay Act,
interest must accrue through a date not more than 30 days before the date on which
the payment is made).
For the above reasons, we find the agency in compliance with its obligation
to pay the appellant for military leave he would have been entitled to for the period
of April 14, 2000, through September 29, 2001, and interest on that amount.
Improper Offsets and Denials based on Insufficient Evidence
The administrative judge additionally found the agency failed to correctly
calculate the back pay due to the appellant because it (1) improperly offset from the
back pay award the appellant’s receipt of BAS, BAH, and combat pay in
2001-2004, 2009, 2010, and 2012 through January 2015; and (2) improperly denied
the appellant back pay based on insufficient evidence regarding his earnings or
mitigation efforts from January 1 to December 31, 2006; January 1 to May 14,
2007; September 28, 2007, to January 27, 2008; November to December 2010; and
January 1 to December 31, 2011. CID at 8-11.
The agency asserts that it has recalculated the appellant’s back pay award
without offsetting his receipt of BAS, BAH, or combat pay, or excluding periods
for which it believed there was incomplete evidence regarding mitigation and
attempts to mitigate. CRF, Tabs 6, 17, 19. In support, the agency provided12
evidence and explanation showing that, based on the appellant’s historical rates of
pay previously approved by the administrative judge, he would have earned
$688,560.30 in gross pay had he worked at the agency during the back pay period
(excluding 2005 and May 15 to September 27, 2007, when he earned more from
military service than he would have made at the agency). CRF, Tab 6 at 3 n.2,
Tab 17 at 17-69; see also C-1 CF, Tab 26 at 22, CID at 6-7. From this total, the
agency deducted $525,432.93 in military earnings, which it calculated using the
amounts shown in the military pay chart provided by the appellant and
accompanying evidence for the periods September 30, 2001, through December 31,
2004; 2006; and January 1, 2008, through January 22, 2015. CRF, Tab 6
at 102-104, Tab 17 at 6-14, 69, Tab 19 (citing C-1 CF, Tab 6). The agency also
deducted $21,108.28 in prior payments made to him for military leave and the
original back pay payment.8 CRF, Tab 6 at 103. After these deductions, the agency
arrived at a gross total additional back pay payment of $142,019.09.9 CRF, Tab 17
at 5.
Following a careful review of the record, we are satisfied that the agency has
complied with its obligation to calculate the appellant’s outside earnings offset
without including any BAS, BAH, or combat pay, or excluding any periods for
insufficient evidence. The evidence reflects that, for years 2001 -2002, 2006, and
2008-2015, the agency offset only the appellant’s base pay or gross taxable income,
which do not include BAH, BAS, or combat pay. See Armed Forces’ Tax Guide,
Internal Revenue Service Publication 3 at 7,
8 The agency stated that the $21,108.28 in prior payments deducted from the total back
pay award includes a February 2014 lump sum payment in the gross amount of
$15,111.28 for military leave and the original back pay payment of $5,997. CRF, Tab 6
at 6, 103-04, C-2 CF, Tab 28 at 10. The appellant has not disputed that he received these
amounts.
9 From the $142,019.09 gross additional back pay award, the agency paid him $67,254.46
by check dated March 29, 2023, after deducting $74,764.63 for retirement contributions,
social security, Medicare, Federal taxes, and TSP contributions payment. CRF, Tab 17
at 16.13
https://www.irs.gov/pub/irs-pdf/p3.pdf (last visited Mar. 19, 2025); CRF, Tab 6
at 103-104; C-1 CF, Tab 24 at 504 (FITW-WAGE-YTD of $40,264.04 for 2001)10,
507 (FITW-WAGE-YTD of $43,630.56 for 2002), 541 (W-2 Box 1 of $7,216.92 in
2006), 539 (W-2 Box 1 of $46,465.60 in 2008), 538 (W-2 Box 1 of $77,380.29 in
2009), 537 (W-2 Box 1 of $58,84.91 in 2010), 536 (W-2 Box 1 of $4,559.18 for
2011), 535 (W-2 Box 1 of $21,162.75 for 2012), 445-469 (leave and earnings
statements base pay of $80,920.80 for 2013), 470-494 (leave and earnings
statements base pay of $81,730.80 for 2014), 495-498 (leave and earnings base pay
of $5,273.90 for January and February 2015).11 For years 2003 and 2004, the
agency offset the amount shown on the Master Military Pay Account (MMPA)
printouts as FICA -WAG-YTD, which appears to be the amount of the appellant’s
military pay that was subject to Federal Insurance Contribution Act (FICA)
withholdings. See CRF, Tab 6 at 103; C-1 CF, Tab 24 at 511 (FICA -WAG-YTD
of $43,506.00 for 2003), 516 (FICA-WAG-YTD of $46,118.42 for 2004). The
appellant did not earn any BAS or BAH in 2003 or 2004, but did earn combat pay,
which does not appear to be subject to FICA (though other pay received in a combat
zone may be). See id.; Department of Defense, Financial Management Regulation,
Volume 7A, Ch. 45, Sec. 2.1-2.2 (March 2023), https://comptroller
.defense.gov/Portals/45/documents/fmr/current/07a/07a_45.pdf. Although it is
unclear why the appellant informed the agency that his gross military pay was the
amount shown at FITW-WAGE-YTD on the MMPA printouts for 2001 and 2002,
but the amount shown at FICA-WAG-YTD for 2003 and 2004, we agree with the
agency that it was entitled to rely on those figures pursuant to the administrative
judge’s order to give the appellant the benefit of the doubt. C -1 CF, Tab 24 at 7,
504, 507, 511, 516; CRF, Tab 6 at 103-104, Tab 19 at 4-7; CID at 9-10. In
10 Outside earnings for 2001 were prorated to $12,635 as the back pay period included
only September 30 to December 31, 2001. CRF, Tab 6 at 102.
11 FITW-WAGE-YTD refers to year-to-date wages that are subject to federal income tax
withholding. W-2 Box 1 contains the amount of taxable “wages, tips, or other
compensation” received.14
addition, the appellant did not respond to the agency’s May 2024 or January 2025
compliance submissions clarifying its recalculation of his back pay award without
offsets and exclusions, and we therefore assume he is satisfied with this aspect of
the agency’s compliance. See Baumgartner v. Department of Housing and Urban
Development, 111 M.S.P.R. 86, ¶ 9 (2009).
The agency further demonstrated that the appellant was entitled to
$119,591.56 in interest on the additional back pay payment and that it paid him this
amount by check dated April 13, 2023. CRF, Tab 6 at 7, 62-93, Tab 19 at 51-61.
The agency’s evidence reflects that it utilized the OPM Back Pay Calculator and
properly calculated the interest through March 29, 2023, less than 30 days before
issuance of the payment. See 5 U.S.C. § 5596(b)(2)(B)(i). The appellant has not
disputed this interest payment, and we therefore assume he is satisfied with it.
Sick and Annual Leave
The administrative judge also found that the agency failed to demonstrate
compliance with its obligation to restore to the appellant the annual leave he would
have earned during the periods he was not performing active duty military service
from September 30, 2001, to January 22, 2015, and the sick leave he would have
earned for the entire period. CID at 13-14.
In its May 2023 compliance submission, the agency stated and provided
evidence showing that it had adjusted the appellant’s sick leave balance from
4 hours to 1,272.71 hours and that it adjusted his annual leave balance from
176 hours to 2,630 hours. CRF, Tab 6 at 5, 100 -01. The agency stated that the
appellant arguably received an “overpayment” of annual leave because the
compliance initial decision only required the agency to restore annual leave for the
periods he was not on active duty in the military, but “such adjustments are
automatically performed as a result of the back pay process at the Postal Service.”
Id. at 6 n.1. In response, the appellant generally disagreed with the agency’s
annual and sick leave calculations, stating “[t]here seems to be a huge discrepancy15
in the annual leave and sick leave,” but did not identify any specific inaccuracy.
CRF, Tab 8 at 4.
In its April 2024 supplemental compliance submission, the agency explained
that employees earn 4 hours of sick leave for every 80 hours they were paid during
a leave year. CRF, Tab 15 at 7-10. The agency set forth the number of hours the
appellant worked during each year of the back pay period and then divided that
number by 80 to ascertain the number of 80 -hour increments (“leave increments”)
he worked for each leave year. Id. After performing this calculation for each leave
year, the agency determined that the appellant was entitled to 4 hours of sick leave
for 314 leave increments of back pay period, which totaled 1,256 hours of sick
leave. Id. at 9-10. The agency also credited the appellant with 12.71 hours of sick
leave that he had already earned prior to his separation in 2000, resulting in a total
restoration of 1,267.71 hours of sick leave. Id. The appellant did not respond.
We find that the agency has demonstrated compliance with its obligation to
calculate and restore to the appellant the hours of sick leave he would have earned
at the agency from September 30, 2001, to January 22, 2015. As described above,
the agency has properly restored to the appellant 4 hours of sick leave for every
80 hours he would have worked during this period and credited him with the sick
leave he had accrued prior to his separation, for a total restoration of
1,267.71 hours of sick leave. In addition, the appellant did not respond to the
agency’s April 2024 submission describing its sick leave restoration calculations,
and we therefore assume he is satisfied. See Baumgartner, 111 M.S.P.R. 86, ¶ 9.
We additionally find that the agency is in compliance with its obligation to
restore the appellant’s annual leave. Although the agency did not provide a
narrative explanation detailing its calculations, it is evident that the agency
restored far more hours of annual leave to the appellant than it was required to. As
noted above, the agency was only required to restore to the appellant the annual
leave he would have earned during the periods he was not serving on active duty in
the military, which was only several years of the nearly 14 -year back pay period.16
CID at 12-13 (noting that the appellant was on active duty from April 2, 1999, to
December 31, 2005; May 15 to September 27, 2007; January 28, 2008, to
September 12, 2010; May 21, 2011, to October 1, 2012; and October 2, 2012, to
January 23, 2015). However, the agency restored to him 2,460 hours of annual
leave, which represents an average of 7.83 hours of annual leave restored for each
of the 314 “leave increments” the appellant would have accrued had he been
employed by the agency throughout the back pay period. CRF, Tab 6 at 100-101,
Tab 15 at 8-10. As the appellant was entitled to 6 hours of annual leave per pay
period until approximately November 2001, at which time he became entitled to
8 hours of annual leave per pay period, C-1 CF, Tab 26 at 63-98, the agency’s
restoration of 2,460 hours represents the full amount of annual leave he would have
earned had he worked at the agency throughout the back pay period, including
those periods when he was on active duty. Thus, the agency exceeded its annual
leave restoration obligation. In light of this evidence, and because the appellant
has not identified any specific inaccuracy in the agency’s restoration of his annual
leave, we are satisfied with the agency’s compliance.
TSP Account
Before the administrative judge, the agency argued that the appellant was not
entitled to any restored TSP benefit because TSP was available in the military, the
appellant did not contribute to his TSP while in the military, and it would be
speculative to assume the appellant would have contributed had he been employed
by the agency. C-1 CF, Tab 26 at 45-46. The administrative judge found, however,
that the agency presented no evidence that active -duty service members received a
comparable benefit during the back pay period and that the appellant was entitled to
a presumption in his favor in light of the purpose of USERRA. CID at 14-15.
Accordingly, the administrative judge concluded that the agency had not satisfied
its compliance obligations with regard to TSP contributions and ordered it to do so.
CID at 14-15.17
Pursuant to the Federal Retirement Thrift Investment Board (FRTIB)
regulations, the employing agency must give a reinstated employee who would
have been eligible to contribute to his TSP account but for the erroneous separation
the opportunity to submit a new contribution election for purposes of makeup
contributions or to reinstate the contribution election he had on file at the time of
his separation for makeup contributions. 5 C.F.R. § 1605.13(a)(2). The
regulations also provide that the employee’s makeup contributions must be
computed before the back pay award is paid, deducted from the back pay, and
submitted to the TSP record keeper; must not cause the participant to exceed the
annual contribution limit(s); and must be accompanied by attributable agency
matching and automatic (1%) contributions. 5 C.F.R. § 1605.13(c).
In its May 2023 compliance submission, the agency asserted that it restored
the appellant’s TSP contributions pursuant to his prior TSP election of 6% full
agency matching. CRF, Tab 6 at 6. In support, the agency provided a Back Pay
Report reflecting deductions of 6% from each pay period of the back pay period,
resulting in a total of $35,754.76 deducted from his March 29, 2023 back pay check
for “TSP Regular.” Id. at 9-97. The appellant responded that his TSP “was not
contributed properly” and that he “sent multiple documents to the Agency
specifically explaining the amount to contribute in order to get max savings on
taxes, and, to also increase what the agency would have to contribute to as well, but
they refused.” CRF, Tab 8 at 4.
In its April 2024 supplemental compliance submission, the agency provided
evidence showing that the appellant requested by TSP Election Form TSP-1 dated
February 28, 2022, a Roth (After-Tax) TSP contribution of a $550 per pay period
for the back pay period. CRF, Tab 15 at 11, 38. However, as agency counsel
informed him by letter dated March 25, 2022, this election could not be
implemented because the Roth option was not available before June 2, 2012, and
his election of $550 per pay period exceeded the contribution limits for 2001 -2005
and the total back pay owed to him. Id. at 36. The letter further informed him that18
the agency would apply the 6% election he last made while employed at the agency
unless he submitted a new TSP-1 that could be effectively implemented. Id. at 36.
The agency stated that the appellant never responded to this letter or clarified his
election, so the agency proceeded to use his prior election of a 6% TSP
contribution. Id. at 11-12; see id. at 31-32. The agency also provided a payroll
journal and spreadsheet showing that it made 314 payments of the automatic 1% of
his basic pay and 4% agency match to the appellant’s TSP account. CRF, Tab 15
at 12-13, 40-85. The appellant did not respond to the agency’s submission.
In its final compliance submission in January 2025, the agency stated and
provided an affidavit from a Lead Systems Accountant in Payroll Services
confirming that the proper amount of TSP contributions was credited and reported
to the TSP agency. CRF, Tab 19 at 7, 10-11. The Lead Systems Accountant
explained that the appellant’s elected TSP contribution amount, along with the
agency’s matching and 1% automatic contributions, were transmitted to the TSP
agency on the transmission date for his back pay award on April 14, 2023. Id.
at 10. She further explained that, as reflected on the payroll journal, the deductions
were sent on a pay period by pay period basis for every individual pay period
during the back pay timeframe so that the TSP agency could process the retroactive
breakage calculations as if the monies had been received at that time. Id. at 11; see
id. at 12-50 (pay roll journal). She attested that, once the agency transmits the
retroactive TSP contributions, “any and all breakage calculations are then
performed solely by the TSP agency” and that “any inquiries regarding how and
when these calculations were performed would need to be directed to the current
TSP provider.” Id. She concluded that the agency followed proper procedures in
restoring the appellant’s TSP account. Id. The appellant again did not respond to
the agency’s submission.
Based on the above-discussed evidence and explanation provided by the
agency, we find that it is in compliance with its obligation to restore the appellant’s
TSP account. Although the appellant argued in response to the agency’s first19
compliance submission that the agency failed to correctly apply his new
contribution election, it was his failure to submit a corrected TSP -1 election form
after the agency notified him that his February 28, 2022 election could not be
implemented that forced the agency to use his prior election. See Coe v. U.S.
Postal Service, 101 M.S.P.R. 575, ¶¶ 13-14 (holding that, when an appellant does
not cooperate with the agency’s efforts to achieve compliance, the Board may deny
the petition for enforcement), aff’d, 208 F. App’x 932 (Fed. Cir. 2006). Moreover,
because the appellant did not respond to the agency’s subsequent compliance
submissions, we assume that he is satisfied with the actions it has taken regarding
his TSP contributions. See Baumgartner , 111 M.S.P.R. 86, ¶ 9.
CONCLUSION
In light of the foregoing, we find that the agency is now in compliance with
the outstanding compliance obligations identified in the compliance initial decision
and dismiss the petition for enforcement and the petition for review. 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. 20
NOTICE OF APPEAL RIGHTS12
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.21
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a22
courtappointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s23
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
13 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.24
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.25 | Erickson_RichardAT-3443-07-0016-X-1__Final_Order.pdf | 2025-03-20 | RICHARD ERICKSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-3443-07-0016-C-1, March 20, 2025 | AT-3443-07-0016-X-1; AT-3443-07-0016-C-2 | NP |
39 | https://www.mspb.gov/decisions/nonprecedential/Roberts_Ryan_W_DE-1221-20-0280-W-5__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RYAN W. ROBERTS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-20-0280-W-5
DATE: March 20, 2025
Nathaniel McClure , Wichita, Kansas, for the appellant.
Rosemary Dettling , Esquire, Washington, D.C., for the appellant.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
Kathleen Hunter , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The agency has filed a petition for review of the initial decision, which
granted in part the appellant’s request for corrective action in this individual right
of action appeal. Vice Chairman Kerner has recused himself from consideration
of this case. Because there is no quorum to alter the administrative judge’s initial
decision, the initial decision now becomes the final decision of the Merit Systems
Protection Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
Based on the initial decision, which is now the Board’s final decision, the
parties’ obligations are set out below:
The agency must determine the average amount of a Special Award for
Performance bestowed at the Robert J. Dole VAMC in 2019 for work similar to
the ERAS initiative and to pay the appellant that amount; cancel the appellant’s
termination and reinstate him to his former position retroactive to February 10,
2020; and remove all references to the appellant’s detail assignment from agency
records and those of his Official Personnel File. See Kerr v. National Endowment
for the Arts, 726 F.2d 730 (Fed. Cir. 1984).
The agency must 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. The
appellant must 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, the
agency must pay the appellant the undisputed amount no later than 60 calendar
days after the date of this decision.
The agency must 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).
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).2
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.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable3
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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
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. | Roberts_Ryan_W_DE-1221-20-0280-W-5__Final_Order.pdf | 2025-03-20 | RYAN W. ROBERTS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-20-0280-W-5, March 20, 2025 | DE-1221-20-0280-W-5 | NP |
40 | https://www.mspb.gov/decisions/nonprecedential/Myles_KuiSF-1221-22-0606-W-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KUI MYLES,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-1221-22-0606-W-1
DATE: March 20, 2025
Daniel Meyer , Esquire, and Michael R. Goldstein , Esquire, Washington,
D.C., for the appellant.
Porter McHenry , Esquire, Syosset, New York, for the appellant.
Thomas Tierney , Esquire, Norwalk, Connecticut, for the appellant.
Linda G. Ronan , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action appeal.
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Myles_KuiSF-1221-22-0606-W-1__Final_Order.pdf | 2025-03-20 | KUI MYLES v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-22-0606-W-1, March 20, 2025 | SF-1221-22-0606-W-1 | NP |
41 | https://www.mspb.gov/decisions/nonprecedential/Porter_Kathy_H_CH-0752-17-0010-C-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY H. PORTER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBERS
CH-0752-17-0010-X-1
CH-0752-17-0010-C-1
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kathy H. Porter , Rochester, Kentucky, pro se.
Roderick D. Eves , Esquire, and Thao T. Pham , Esquire, St. Louis,
Missouri, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
In a February 1, 2024 Order, the Board affirmed an August 2, 2018
compliance initial decision that found the agency in noncompliance with an
April 28, 2017 initial decision, which had become the final decision of the Board
after neither party filed a petition for review. Porter v. U.S. Postal Service ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
MSPB Docket No. CH-0752-17-0010-I-1, Initial Appeal File, Tab 19,
Initial Decision (ID); Porter v. U.S. Postal Service , MSPB Docket No. CH-0752-
17-0010-C-1, Compliance Petition for Review (CPFR) File, Tab 5. The
April 28, 2017 decision found that the appellant’s retirement was involuntary and
ordered the agency to reverse her separation, to restore her, effective
October 1, 2014, and to pay her the appropriate amount of backpay with interest.
ID at 2, 14-15. For the reasons that follow, we now find the agency in
compliance and DISMISS the appellant’s petition for enforcement and petition
for review.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In its February 1, 2024 Order, the Board found that the agency had not
established compliance with its April 28, 2017 decision and affirmed the
compliance initial decision findings that: (1) the agency improperly withheld
from the appellant’s backpay award the amount of her 2014 pay for performance
(PFP) award and her union dues; (2) the agency did not pay the appellant the
proper amount of interest due because of its improper deduction of the PFP bonus
and union dues; and (3) the agency needed to ensure the correct effective date of
the appellant’s placement in the Part-Time Flexible (PFT) Sales, Service
Distribution Associate position was reflected in the appellant’s official personnel
file (OPF). CPFR File, Tab 5 at 4. Accordingly, given outstanding issues of
compliance remained, the Board referred the appellant’s petition for enforcement
to its Office of General Counsel to obtain compliance. Id. at 6.
On September 6, 2018, before the Board issued its February 1, 2024 Order,
the agency submitted a statement of compliance asserting that it had paid the
appellant the backpay owed, excluding the improper bonus and union dues
deductions. Porter v. U.S. Postal Service , MSPB Docket No. CH-0752-17-0010-
X-1, Compliance Referral File (CRF), Tab 1. As evidence of its compliance, the
agency submitted a payment summary showing it had recalculated the backpay2
without withholding the bonus and union dues for a total amount of $4,365.24.
CRF, Tab 1 at 10. The agency also submitted a copy of a check payment for the
recalculated backpay in the amount of $2,924.71, which it represented was the
total backpay of $4,365.24 less the $1,440.53 it had previously paid the appellant
in 2017. Id. at 5, 8, 12. Finally, the agency submitted a Postal Service (PS)
Form 50 reflecting that the appellant was placed in the PFT Sales position,
effective February 7, 2015.2 Id. at 5, 14. On February 19, 2024, the appellant
filed a response to the agency’s statement of compliance, disputing receipt of the
backpay check in the amount of $2,924.71 and stating that the agency did not
provide proof that it had recalculated and paid her the proper amount of interest
owed based on the recalculated backpay award. CRF, Tab 5.
On October 2, 2024, the agency filed a supplemental compliance response
in which it asserted that it had determined that the backpay check in the amount
of $2,924.71 was never negotiated and was automatically cancelled on
September 30, 2020, two years after its issuance. CRF, Tab 6 at 6, 55. Thus, the
agency asserted that it had re-issued the check for $2,924.71 and submitted
evidence that it had mailed the appellant a new check in the amount of $2,986.02,
which was delivered on June 28, 2024.3 Id. at 16-21. Regarding interest, the
agency submitted evidence that it had issued an additional interest check in the
amount of $1,003.31 based on the recalculated backpay award, which was
received by the appellant on September 7, 2024.4 Id. at 6, 8-12. As additional
evidence, the agency submitted its interest calculations. Id. at 13-15. On
2 According to the agency, the appellant was reinstated, effective September 30, 2014,
CRF, Tab 6 at 37; but she was placed in the PFT Sales position, effective
February 7, 2015, because her prior position had been abolished due to reorganization.
Porter v. U.S. Postal Service , MSPB Docket No. CH-0752-17-0010-C-1, Compliance
File (CF), Tab 3 at 5; CRF, Tab 1 at 14.
3 The agency did not explain the reason for the difference of $61.31 between the two
checks.
4 The agency had previously paid the appellant $1,738.36 in interest. CF, Tab 3 at 5,
32-39; CF, Tab 15, Compliance Initial Decision at 4; CPFR File, Tab 5 at 2.3
February 5, 2025, the Board issued an Order affording the appellant an
opportunity to respond to the agency’s supplemental compliance response. CRF,
Tab 7. The appellant has not filed a response.
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191
(Fed. Cir. 2006). The agency bears the burden to prove compliance with the
Board’s order by a preponderance of the evidence.5 Vaughan, 116 M.S.P.R. 319,
¶ 5; 5 C.F.R. § 1201.183(d). An agency’s assertions of compliance must include
a clear explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
As noted, to comply with the Board’s final order, the agency was required
to provide evidence that it had recalculated the appellant’s backpay award to
exclude the improper bonus and union dues deductions, recalculated the interest
owed to the appellant, and ensured that her OPF reflected the proper effective
date of her placement in the PFT Sales, Service Distribution Associate position.
The agency’s submissions show that it has now reached full compliance. As
described above, the agency has provided evidence reflecting that it properly
recalculated the backpay amount, less the bonus and union dues, and issued the
appellant an additional backpay check. CRF, Tab 6 at 6, 16-21. The agency also
recalculated the interest owed on the additional backpay and submitted evidence
5 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
that it had mailed the appellant an interest check payment of $1,003.31. Id. at 6,
8-15. The agency also submitted a PS Form 50 confirming the appellant was
placed in the PTF Sales, Service Distribution Associate position, effective
February 7, 2015. CRF Tab 1 at 14. As the appellant has not responded to the
agency’s supplemental statement of compliance, or to the Board’s
February 5, 2025 Order affording her an opportunity to do so, CRF, Tab 7, the
Board assumes that she is satisfied, see Baumgartner v. Department of Housing &
Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009).
In light of the foregoing, we find the agency in compliance with its
outstanding compliance obligations and dismiss the petition for enforcement and
the petition for review. 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 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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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.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).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Porter_Kathy_H_CH-0752-17-0010-C-1__Final_Order.pdf | 2025-03-20 | KATHY H. PORTER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-, March 20, 2025 | CH-0752-17-0010-C-1; CH-0752-17-0010-X-1 | NP |
42 | https://www.mspb.gov/decisions/nonprecedential/Reynolds_LanceCH-0752-23-0078-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE REYNOLDS,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
CH-0752-23-0078-I-2
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Richard Young , Esquire, and Jacquelyn Trevino , Esquire,
Houston, Texas, for the appellant.
Adam Eisenstein , Esquire, and Candice Geller , Washington, D.C.,
for the agency.
Colleen Berry , Stockton, California, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his indefinite suspension. On petition for review, the appellant argues
that the suspension did not promote the efficiency of the service and was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
unreasonable because it was imposed in a discriminatory manner. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Reynolds_LanceCH-0752-23-0078-I-2__Final_Order.pdf | 2025-03-20 | LANCE REYNOLDS v. DEPARTMENT OF JUSTICE, MSPB Docket No. CH-0752-23-0078-I-2, March 20, 2025 | CH-0752-23-0078-I-2 | NP |
43 | https://www.mspb.gov/decisions/nonprecedential/Porter_Kathy_H_CH-0752-17-0010-X-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY H. PORTER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBERS
CH-0752-17-0010-X-1
CH-0752-17-0010-C-1
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kathy H. Porter , Rochester, Kentucky, pro se.
Roderick D. Eves , Esquire, and Thao T. Pham , Esquire, St. Louis,
Missouri, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
In a February 1, 2024 Order, the Board affirmed an August 2, 2018
compliance initial decision that found the agency in noncompliance with an
April 28, 2017 initial decision, which had become the final decision of the Board
after neither party filed a petition for review. Porter v. U.S. Postal Service ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
MSPB Docket No. CH-0752-17-0010-I-1, Initial Appeal File, Tab 19,
Initial Decision (ID); Porter v. U.S. Postal Service , MSPB Docket No. CH-0752-
17-0010-C-1, Compliance Petition for Review (CPFR) File, Tab 5. The
April 28, 2017 decision found that the appellant’s retirement was involuntary and
ordered the agency to reverse her separation, to restore her, effective
October 1, 2014, and to pay her the appropriate amount of backpay with interest.
ID at 2, 14-15. For the reasons that follow, we now find the agency in
compliance and DISMISS the appellant’s petition for enforcement and petition
for review.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In its February 1, 2024 Order, the Board found that the agency had not
established compliance with its April 28, 2017 decision and affirmed the
compliance initial decision findings that: (1) the agency improperly withheld
from the appellant’s backpay award the amount of her 2014 pay for performance
(PFP) award and her union dues; (2) the agency did not pay the appellant the
proper amount of interest due because of its improper deduction of the PFP bonus
and union dues; and (3) the agency needed to ensure the correct effective date of
the appellant’s placement in the Part-Time Flexible (PFT) Sales, Service
Distribution Associate position was reflected in the appellant’s official personnel
file (OPF). CPFR File, Tab 5 at 4. Accordingly, given outstanding issues of
compliance remained, the Board referred the appellant’s petition for enforcement
to its Office of General Counsel to obtain compliance. Id. at 6.
On September 6, 2018, before the Board issued its February 1, 2024 Order,
the agency submitted a statement of compliance asserting that it had paid the
appellant the backpay owed, excluding the improper bonus and union dues
deductions. Porter v. U.S. Postal Service , MSPB Docket No. CH-0752-17-0010-
X-1, Compliance Referral File (CRF), Tab 1. As evidence of its compliance, the
agency submitted a payment summary showing it had recalculated the backpay2
without withholding the bonus and union dues for a total amount of $4,365.24.
CRF, Tab 1 at 10. The agency also submitted a copy of a check payment for the
recalculated backpay in the amount of $2,924.71, which it represented was the
total backpay of $4,365.24 less the $1,440.53 it had previously paid the appellant
in 2017. Id. at 5, 8, 12. Finally, the agency submitted a Postal Service (PS)
Form 50 reflecting that the appellant was placed in the PFT Sales position,
effective February 7, 2015.2 Id. at 5, 14. On February 19, 2024, the appellant
filed a response to the agency’s statement of compliance, disputing receipt of the
backpay check in the amount of $2,924.71 and stating that the agency did not
provide proof that it had recalculated and paid her the proper amount of interest
owed based on the recalculated backpay award. CRF, Tab 5.
On October 2, 2024, the agency filed a supplemental compliance response
in which it asserted that it had determined that the backpay check in the amount
of $2,924.71 was never negotiated and was automatically cancelled on
September 30, 2020, two years after its issuance. CRF, Tab 6 at 6, 55. Thus, the
agency asserted that it had re-issued the check for $2,924.71 and submitted
evidence that it had mailed the appellant a new check in the amount of $2,986.02,
which was delivered on June 28, 2024.3 Id. at 16-21. Regarding interest, the
agency submitted evidence that it had issued an additional interest check in the
amount of $1,003.31 based on the recalculated backpay award, which was
received by the appellant on September 7, 2024.4 Id. at 6, 8-12. As additional
evidence, the agency submitted its interest calculations. Id. at 13-15. On
2 According to the agency, the appellant was reinstated, effective September 30, 2014,
CRF, Tab 6 at 37; but she was placed in the PFT Sales position, effective
February 7, 2015, because her prior position had been abolished due to reorganization.
Porter v. U.S. Postal Service , MSPB Docket No. CH-0752-17-0010-C-1, Compliance
File (CF), Tab 3 at 5; CRF, Tab 1 at 14.
3 The agency did not explain the reason for the difference of $61.31 between the two
checks.
4 The agency had previously paid the appellant $1,738.36 in interest. CF, Tab 3 at 5,
32-39; CF, Tab 15, Compliance Initial Decision at 4; CPFR File, Tab 5 at 2.3
February 5, 2025, the Board issued an Order affording the appellant an
opportunity to respond to the agency’s supplemental compliance response. CRF,
Tab 7. The appellant has not filed a response.
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191
(Fed. Cir. 2006). The agency bears the burden to prove compliance with the
Board’s order by a preponderance of the evidence.5 Vaughan, 116 M.S.P.R. 319,
¶ 5; 5 C.F.R. § 1201.183(d). An agency’s assertions of compliance must include
a clear explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
As noted, to comply with the Board’s final order, the agency was required
to provide evidence that it had recalculated the appellant’s backpay award to
exclude the improper bonus and union dues deductions, recalculated the interest
owed to the appellant, and ensured that her OPF reflected the proper effective
date of her placement in the PFT Sales, Service Distribution Associate position.
The agency’s submissions show that it has now reached full compliance. As
described above, the agency has provided evidence reflecting that it properly
recalculated the backpay amount, less the bonus and union dues, and issued the
appellant an additional backpay check. CRF, Tab 6 at 6, 16-21. The agency also
recalculated the interest owed on the additional backpay and submitted evidence
5 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
that it had mailed the appellant an interest check payment of $1,003.31. Id. at 6,
8-15. The agency also submitted a PS Form 50 confirming the appellant was
placed in the PTF Sales, Service Distribution Associate position, effective
February 7, 2015. CRF Tab 1 at 14. As the appellant has not responded to the
agency’s supplemental statement of compliance, or to the Board’s
February 5, 2025 Order affording her an opportunity to do so, CRF, Tab 7, the
Board assumes that she is satisfied, see Baumgartner v. Department of Housing &
Urban Development , 111 M.S.P.R. 86, ¶ 9 (2009).
In light of the foregoing, we find the agency in compliance with its
outstanding compliance obligations and dismiss the petition for enforcement and
the petition for review. 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 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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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.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).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Porter_Kathy_H_CH-0752-17-0010-X-1__Final_Order.pdf | 2025-03-20 | KATHY H. PORTER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-, March 20, 2025 | CH-0752-17-0010-C-1; CH-0752-17-0010-X-1 | NP |
44 | https://www.mspb.gov/decisions/nonprecedential/Tutwiler_LoganSF-0752-23-0485-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOGAN TUTWILER,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-23-0485-I-1
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Saku E. Ethir , Esquire, Riverside, California, for the appellant.
Rebecca Wulffen , Esquire, and Margo Chan , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal of the appellant from his position and Federal
employment. On petition for review, the appellant argues that the administrative
judge erred when she found the mitigating factors were appropriately considered
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
by the agency decision maker and when she failed to find the removal of the
appellant was not an appropriate penalty. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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 | Tutwiler_LoganSF-0752-23-0485-I-1__Final_Order.pdf | 2025-03-20 | LOGAN TUTWILER v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-23-0485-I-1, March 20, 2025 | SF-0752-23-0485-I-1 | NP |
45 | https://www.mspb.gov/decisions/nonprecedential/Short_GinaDC-0752-22-0467-I-2__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GINA SHORT,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-22-0467-I-2
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laura L. Nagel , Esquire, Katherine Lease , Esquire, and Kathryn Kelly ,
Esquire, Washington, D.C., for the appellant.
Colleen A. Crane , Esquire, Camp Springs, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. We MODIFY the initial
decision in the following ways: (1) we AFFIRM the administrative judge’s
finding that the agency proved its excessive absence charge with respect to
613 hours and REVERSE his finding as to the remaining 337 hours; (2) we
AFFIRM the administrative judge’s finding that the agency proved
4 specifications of its absent without leave (AWOL) charge and REVERSE his
finding that the agency proved the remaining 2 specifications; and (3) we FIND
that the appellant proved that she has a disability but did not prove that she is a
qualified individual with a disability, still DENYING her affirmative defense of
disability discrimination. We AFFIRM the initial decision, still SUSTAINING
the appellant’s removal.
On review, the appellant asserts that the administrative judge erred in
sustaining the excessive absence and absent without leave (AWOL) charges.
Short v. Department of Homeland Security , MSPB Docket No. DC-0752-22-0467-
I-2, Petition for Review (PFR) File, Tab 1 at 20-28. She also challenges the
denial of her affirmative defense of disability discrimination based on the
administrative judge’s finding that she did not prove that she was disabled within
the meaning of the Rehabilitation Act. Id. at 16-20. Finally, she asserts that she
has evidence demonstrating that she can now perform the essential functions of2
her position and that her removal does not promote the efficiency of the service.
Id. at 15, 24.
The agency proved its excessive absence charge.
In support of its excessive absence charge, the agency noted that, between
October 2020 and November 2021, the appellant was absent for more than
950 hours on annual leave, sick leave, and leave without pay that was not
protected under the Family and Medical Leave Act. Short v. Department of
Homeland Security , MSPB Docket No. DC-0752-22-0467-I-1, Initial Appeal File
(IAF), Tab 1 at 6-7. Generally, an agency may not take an adverse action based
on an employee’s use of approved leave. Williams v. Department of Commerce ,
2024 MSPB 8, ¶ 5. However, an exception exists when an agency can prove the
following elements: (1) the employee was absent for compelling reasons beyond
her control so that the agency’s approval or disapproval was immaterial because
the employee could not be on the job; (2) the absence continued beyond a
reasonable time and the agency warned the employee that an adverse action could
be taken unless the employee became available for duty on a regular, full -time or
part-time basis; and (3) the position needed to be filled by an employee available
on a regular, full-time or part-time basis. Id. The administrative judge found that
the agency proved each element of its excessive absence charge, including that
the appellant was absent for more than 950 hours between October 2020 and
November 2021. Short v. Department of Homeland Security , MSPB Docket No.
DC-0752-22-0467-I-2, Refiled Appeal File (RAF), Tab 15, Initial Decision (ID)
at 3-8.
The first element is not disputed on review. Regarding the second element,
the Board held in Williams, 2024 MSPB 8, ¶ 6, that, to prove an excessive
absence charge, an agency may not rely on absences that predate its warning to
the appellant that her continued absence could lead to adverse action. In this
case, the agency did not issue such a warning until August 4, 2021. IAF, Tab 11
at 34-35. Thus, only absences after August 4, 2021, can be relied upon in support3
of the removal action. The record reflects that, between August 5 and
November 19, 2021, the appellant was absent from duty for approximately
613 hours. Id. at 73-80. During this time, she did not report to work at all. Id.
We find that 613 hours of absence is sufficient to find that the appellant’s
absence continued beyond a reasonable time. See Gartner v. Department of the
Army, 104 M.S.P.R. 463, ¶ 10 (2007) (sustaining an excessive absence charge
based on 333.5 hours of absence during a 6 -month period). As to the third
element, the appellant asserts on review that the agency did not prove that her
position needed to be filled by an employee on a regular, full -time or part-time
basis. PFR File, Tab 1 at 27. She points to her deposition testimony, in which
she asserts that there is no longer a program manager in the office that she
worked in. RAF, Tab 13 at 83. However, we agree with the administrative judge,
for the reasons set forth in the initial decision, that the agency proved this
element, particularly because it provided evidence demonstrating that it
reassigned the appellant’s workload to other employees, including a project that
was a priority for her office. ID at 7-8. We therefore find that the agency has
proved its excessive absence charge.
The agency proved four specifications of its AWOL charge.
The appellant also asserts on review that the agency cannot prove its
AWOL charge because, between December 2019 and the time of her removal in
May 2022, her medical conditions rendered her incapable of complying with the
agency’s leave procedures, thereby causing her to be AWOL.2 PFR File, Tab 1
at 20-25. With the exception of May 26 and 27, 2021, for which we find the
appellant provided the agency with acceptable evidence establishing her
incapacity, IAF, Tab 9 at 49 (recommending a leave of absence from April 22
2 In the initial decision, the administrative judge merged the charges of AWOL and
failure to follow leave procedures. ID at 8-9. The agency has not filed a petition for
review or cross petition for review on this issue, and we therefore decline to disturb the
administrative judge’s finding.4
through June 3, 2021), the appellant has not pointed to any record evidence
establishing her incapacity on the other dates that the agency charged her with
AWOL, such that she was rendered incapable of complying with the agency’s
leave procedures, see Atchley v. Department of the Army , 46 M.S.P.R. 297, 301
(1990) (holding that an AWOL charge may not be sustained if the appellant
provides administratively acceptable evidence of incapacity prior to the agency’s
decision to remove him). Although we do not question the appellant’s assertions
that her disabilities caused her distress in communicating with agency officials,
she was able to comply with the agency’s leave procedures on all but 4 days
during a more than 1-year period.3 Accordingly, we find no error in the
administrative judge’s conclusion that the agency proved its AWOL charge with
respect to 4 of the 6 specifications. ID at 8.
The appellant did not prove her affirmative defense of disability discrimination.
On review, the appellant challenges the administrative judge’s findings
with respect to her disability discrimination affirmative defense. PFR File, Tab 1
at 16-20. It is illegal for an employer to “discriminate against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a);4 Haas v. Department
of Homeland Security , 2022 MSPB 36, ¶ 28. An employer is required to provide
reasonable accommodation to an otherwise qualified individual with a disability.
42 U.S.C. § 12112(b)(5)(A); Haas, 2022 MSPB 36, ¶ 28. Thus, both a claim of
disability discrimination based on an individual’s status as disabled and a claim
based on an agency’s failure to reasonably accommodate that disability require
that the individual be disabled and that she be qualified, meaning that she can
3 In any case, as set forth below, we would sustain the agency’s removal action based on
the excessive absence charge, alone.
4 The Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act, as amended by the Americans with Disabilities Amendments Act of
2008. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 35.5
perform the essential functions of the position with or without accommodation.
Haas, 2022 MSPB 36, ¶ 28.
The administrative judge found that the appellant did not have a disability
within the meaning of the Rehabilitation Act because the record failed to show
that she had a mental or physical impairment that substantially limited one or
more major life activity. ID at 12. He found that, although the evidence
established that she was uncomfortable performing her assigned duties because of
her supervisor, the evidence did not show that she was foreclosed generally from
performing the work of a Program Manager. Id. He only considered whether the
appellant was substantially limited in the major life activity of working because
he found that she proffered no evidence to show that her impairments affected
any other major life activities. ID at 12 & n.1. We disagree. The medical
evidence the appellant submitted to the agency clearly demonstrates that her
diagnoses of Major Depressive Disorder, Generalized Anxiety Disorder, and Post
Traumatic Stress Disorder substantially limited her major life activities of
concentration, sleep, mood regulation, and eating, among others, and she
therefore meets the definition of an individual with a disability. IAF, Tab 9
at 40-44, Tab 10 at 125, 129, 170; 29 C.F.R. § 1630.2(g).
Notwithstanding, we find that the appellant has not proved that she is a
qualified individual with a disability. A qualified individual with a disability is
one who can perform the essential functions of the position that such individual
holds or desires with or without reasonable accommodation. 42 U.S.C.
§ 12111(8); see Haas, 2022 MSPB 36, ¶ 28. Here, the appellant’s physicians
unequivocally stated that she could not perform the essential functions of her
position without reasonable accommodation. IAF, Tab 10 at 110-11, 120, 125,
129, 170. Thus, we consider whether she was able to perform the essential
functions of her position with reasonable accommodations. Prior to her removal,
the appellant requested reasonable accommodations of extended leave, remote
work, and reassignment. Id. at 67, 125-26, 129. The appellant has not disputed6
that the agency granted each of her requests for extended leave between
October 2020 and November 2021. IAF, Tab 1 at 6-7. Further, she has not
disputed that she was permitted to telework full -time during the relevant time
period. RAF, Tab 10 at 69. The appellant, through her medical providers,
repeatedly requested reassignment “to another position within the organization
that is suited to her skills and knowledge,” IAF, Tab 10 at 129, and to “a division
that she has expertise in[,] which would allow for her to work effectively and
comfortably in her realm of knowledge allowing her to reach her full potential,”
id. at 125-26. The agency interpreted her request for reassignment as one for a
new supervisor and denied her request. RAF, Tab 10 at 68-71. Regardless of the
appellant’s reason for requesting reassignment, however, we find that she has not
met her burden to identify a vacant funded position to which she could be
reassigned. See Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 29 (holding
that the appellant, who did not allege that he could perform the essential
functions of his position, was required to identify a vacant funded position to
which he could be reassigned in order to prove that he was a qualified individual
with a disability); see also Haas, 2022 MSPB 36, ¶ 30 (same). The appellant did
not respond to the agency’s request to identify a vacant funded position to which
she wished to be reassigned, nor did she describe a position or office that she
would like to relocate to. IAF, Tab 10 at 137-39. She also has not done so in her
petition for review. We therefore find that the appellant’s disability
discrimination claims under both disparate treatment and reasonable
accommodation theories must fail because she has not established that she is a
qualified individual with a disability.
The agency proved nexus and that the penalty of removal is reasonable.
The appellant argues on review that the agency cannot establish nexus and
that the penalty of removal is unreasonable. PFR File, Tab 1 at 24, 26-28. To the
extent the appellant asserts that an April 2023 letter from her therapist constitutes
evidence of her recovery, therefore establishing that her removal does not7
promote the efficiency of the service, we disagree. PFR File, Tab 1 at 24; see
Owens v. Department of Homeland Security , 2023 MSPB 7, ¶ 15 (holding that,
when an appellant was removed for medical inability to perform and excessive
absences and provided unambiguous evidence of complete recovery prior to the
issuance of the initial decision, his removal did not promote the efficiency of the
service). The letter states that, as of April 2023, the appellant “is displaying a
level of functioning that would allow her to return to and perform in her previous
workplace.” RAF, Tab 13 at 245. However, the letter also states that, in order
for the appellant to return to work, she should be permitted a 120 -day transition
period, weekly check-ins with management, and that she be exempt from
participation in branch meetings, which was a “major stressor” during her
previous tenure with the agency. Id. The letter also recommends that upper
management and staff receive training on mental health. Id. The letter does not
discuss the essential job functions of the program manager position, nor does it
opine whether the appellant can perform the essential functions with or without
accommodations. Id. Further, we are not persuaded that the accommodations
requested in the letter, such as permission to be exempt from branch meetings, are
reasonable. IAF, Tab 10 at 120 (identifying the following as major duties of the
program manager position: planning, organizing, coordinating, controlling, and
evaluating the activities of the organization; assuring implementation by
subordinate organizations and operating units of the goals and objectives of a
department-wide program; performing liaison with high -ranking officials in other
Federal agencies, top -level managers in the agency, and various governing boards
and committees). We therefore find that this letter does not constitute
unambiguous evidence of complete recovery like the type contemplated in Owens.
See, e.g., Casillas v. Department of the Air Force , 64 M.S.P.R. 627, 633 -34
(1994) (finding that a work capacity evaluation recommending that the appellant
undergo a work tolerance screening in order to evaluate his response to an 8 -hour
work day did not constitute unambiguous evidence of recovery because it did not8
clearly and unambiguously state that the appellant could return to duty and
perform his essential functions).
We have also considered an August 2022 letter from the appellant’s
therapist, which is entitled “Return to work Accommodations.” RAF, Tab 13
at 242. Although the letter opines that, after many months of treatment, the
appellant “is ready to return to work,” it also states that “[b]y no means does
returning to work mean she is free from trauma.” Id. As for accommodations,
the letter contemplates continued leave, mentorship, and training for coworkers
and supervisors. Id. For the same reasons discussed above, we find that the
August 2022 letter does not constitute unambiguous evidence of recovery.
Rather, it is similar to many of the other letters provided to the agency during the
appellant’s extended leave in 2020 and 2021. The appellant has not asserted any
other basis to disturb the administrative judge’s finding that the agency proved
nexus, and we therefore affirm it.5 ID at 18-19.
Finally, we agree with the administrative judge that the agency’s chosen
penalty of removal is reasonable. ID at 19-23. When all of the agency’s charges
are sustained, but some of the underlying specifications are not, the agency’s
penalty determination is entitled to deference and should only be reviewed to
determine whether it is within the parameters of reasonableness. See Payne v.
U.S. Postal Service , 72 M.S.P.R. 646, 651 (1996). Despite our finding that the
agency proved its excessive absence charge with respect to 613 hours, rather than
the 950 hours charged, we find no basis to mitigate the agency’s chosen penalty.
See Gartner, 104 M.S.P.R. 463, ¶ 10 (finding that removal was within the bounds
of reasonableness where the appellant was charged with excessive absences in the
amount of 333.5 hours during a 6 -month period). In the approximately 1.5 -year
5 The appellant asserts on review that the agency should have charged her with medical
inability to perform instead of excessive absences. PFR File, Tab 1 at 27-28. However,
the Board is required to review an agency’s adverse action solely on the grounds
invoked by the agency. Ellshoff v. Department of the Interior , 76 M.S.P.R. 54, 69
(1997).9
period preceding her removal, the appellant reported to work for approximately
54 hours, IAF, Tab 11 at 49-80, requiring the agency to reassign her duties and
reallocate resources, ID at 20. Thus, even if we do not consider the AWOL or
failure to follow leave procedures charges, we find that the penalty of removal is
reasonable for the appellant’s excessive absences.
Based on the foregoing, we deny the appellant’s petition for review and
affirm the initial decision.
NOTICE OF APPEAL RIGHTS6
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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you11
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 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.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).
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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Short_GinaDC-0752-22-0467-I-2__Final_Order.pdf | 2025-03-20 | GINA SHORT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-22-0467-I-2, March 20, 2025 | DC-0752-22-0467-I-2 | NP |
46 | https://www.mspb.gov/decisions/nonprecedential/Rogers_Stacey_K_AT-0752-22-0332-B-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STACEY K. ROGERS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-0752-22-0332-B-1
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stacey K. Rogers , Hinesville, Georgia, pro se.
Dana L. Vockley , Esquire, and Tiffani N. McEntegart , Esquire,
Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision,
which affirmed the agency’s removal decision. On petition for review, the
appellant argues that the agency failed to prove the charges, the removal penalty
is unreasonable, and the witnesses provided false testimony during the hearing.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision.2 5 C.F.R. § 1201.113(b).
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 affirming the removal, the administrative judge adopted the analysis and findings
from the prior initial decision in this case issued by another administrative judge.
Rogers v. Department of Homeland Security , MSPB Docket No. AT-0752-22-0332-B-1,
Remand Appeal File, Tab 18, Remand Initial Decision; Rogers v. Department of
Homeland Security , MSPB Docket No. AT-0752-22-0332-I-1, Initial Appeal File,
Tab 21, Initial Decision. The Board vacated the prior initial decision on procedural
grounds and therefore did not address the merits of that decision. Rogers v. Department
of Homeland Security , MSPB Docket No. AT-0752-22-0332-I-1, Remand Order
(Aug. 23, 2023). The appellant does not specifically object to the administrative judge
adopting his colleague’s prior findings, and we see no reason to disturb the findings
adopted in the remand 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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510.6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Rogers_Stacey_K_AT-0752-22-0332-B-1__Final_Order.pdf | 2025-03-20 | STACEY K. ROGERS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-22-0332-B-1, March 20, 2025 | AT-0752-22-0332-B-1 | NP |
47 | https://www.mspb.gov/decisions/nonprecedential/Shepperd_Kirk_I_DC-0353-23-0445-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIRK I. SHEPPERD,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-0353-23-0445-I-1
DATE: March 19, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil Curtis Bonney , Virginia Beach, Virginia, for the appellant.
Eric J. Teegarden , Fort McCoy, Wisconsin, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as an impermissible collateral attack on the initial decision
in Shepperd v. Department of the Army , MSPB Docket No. DC-0752-20-0366-I-1,
which was then pending before the Board on petition for review. For the
following reasons, we DENY the petition for review in the instant case and
DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
We take notice that on December 19, 2024, while this petition for review
was pending before the full Board, the parties entered into a settlement agreement
resolving the appellant’s concurrent chapter 75 appeal. Shepperd v. Department
of the Army, MSPB Docket No. DC-0752-20-0366-B-1, Remand File (0366 RF),
Tab 9; see Woodjones v. Department of the Army , 89 M.S.P.R. 196, ¶ 5 (2001)
(taking official notice of actions in another Board appeal). The administrative
judge in that appeal determined that the agreement was lawful on its face, that it
was freely reached by the parties, and that the parties understood its terms.
0366 RF, Tab 11, Initial Decision. Accordingly, he dismissed the appeal as
settled and entered the agreement into the record for enforcement purposes. Id.
Neither party filed a petition for review of the initial decision, which is now the
final decision of the Board.
Under the terms of the settlement agreement, the appellant agreed to the
following:
Waive all right to further appeal under the MSPB or any other
adjudicative body related to his employment, accepting this
agreement as a full settlement of Appellant’s claims against the
Agency. Additionally, waive all appeal, grievance, and other review
rights in any forum, and all administrative or judicial recourse
available regarding Appellant’s employment with the Agency. If any
such claim, complaint or grievance is currently filed, withdraw said
action. Specifically waive the right to pursue any administrative or
judicial action in any forum. These matters are closed, and this
settlement agreement serves as conclusive evidence of claim and
issue preclusion.
0366 RF, Tab 9 at 5. We find that the instant case falls squarely within the scope
of the above waiver provision. Accordingly, we dismiss the appeal as settled.
Because the appeal has been settled, we need not reach the other issues raised by
the appellant on petition for review. See Lee v. U.S. Postal Service , 111 M.S.P.R.
551, ¶ 10 (2009), aff’d, 367 F. App’x 137 (Fed. Cir. 2010); Swidecki v. U.S.
Postal Service, 101 M.S.P.R. 110, ¶ 26 (2006). 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 | Shepperd_Kirk_I_DC-0353-23-0445-I-1_Final_Order.pdf | 2025-03-19 | KIRK I. SHEPPERD v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0353-23-0445-I-1, March 19, 2025 | DC-0752-20-0366-I-1; DC-0752-20-0366-B-1; DC-0353-23-0445-I-1 | NP |
48 | https://www.mspb.gov/decisions/nonprecedential/Wilkerson_GwendolynDC-0752-23-0533-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GWENDOLYN WILKERSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0752-23-0533-I-1
DATE: March 19, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gwendolyn Wilkerson , Washington, D.C., pro se.
Margaret Slowen , Esquire, and Julia Martin , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her suspension appeal for failure to prosecute. On petition for review,
the appellant requests review of the initial decision, but despite being afforded
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
extensions of time to supplement her petition for review, she did not provide more
than a general challenge to the initial decision. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to the
facts of the case; the administrative judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of the
case; or new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of the
Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that 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
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
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Wilkerson_GwendolynDC-0752-23-0533-I-1_Final_Order.pdf | 2025-03-19 | GWENDOLYN WILKERSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0752-23-0533-I-1, March 19, 2025 | DC-0752-23-0533-I-1 | NP |
49 | https://www.mspb.gov/decisions/nonprecedential/Dillon_Amy_A_DC-531D-23-0313-P-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY A. DILLON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-531D-23-0313-P-1
DATE: March 18, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paige Gold , Esquire, Alexandria, Virginia, for the appellant.
Margaret Anthony , Esquire, Annandale, Virginia, for the appellant.
Karen M. Hertz , Esquire, Melville, New York, for the appellant.
David Samonds , Esquire, Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the addendum initial
decision, which denied her request for damages in connection with the Board’s
decision in Dillon v. Department of Justice , MSPB Docket No. DC-531D-23-
0313-I-1, which reversed the agency’s denial of a within -grade increase.2 On
petition for review, the appellant argues that she has obtained new evidence that
the agency took other actions against her in retaliation for protected equal
employment opportunity activity. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
2 To the extent the appellant intended her supplemental pleading as a motion for leave
to submit additional evidence, we deny the motion, as the evidence she describes is
would not be material to the outcome of this proceeding. See 5 C.F.R. § 1201.114(k).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 | Dillon_Amy_A_DC-531D-23-0313-P-1_Final_Order.pdf | 2025-03-18 | AMY A. DILLON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-531D-23-0313-P-1, March 18, 2025 | DC-531D-23-0313-P-1 | NP |
50 | https://www.mspb.gov/decisions/nonprecedential/Dillon_Amy_A_DC-531D-23-0313-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMY A. DILLON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-531D-23-0313-A-1
DATE: March 18, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paige Gold , Esquire, Alexandria, Virginia, for the appellant.
Margaret Anthony , Esquire, Annandale, Virginia, for the appellant.
Andrew Uscher , Fairfax, Virginia, for the appellant.
Karen M. Hertz , Esquire, Melville, New York, for the appellant.
David Samonds , Esquire, and Monica Hansen , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her motion for attorney fees. On review, the appellant provides newly
submitted evidence, much of it predating the close of the record below, including
invoices for consulting services provided by non-attorneys (including the
appellant herself), and various documents that do not appear to reflect attorney
fees and costs incurred in the underlying appeal. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Dillon_Amy_A_DC-531D-23-0313-A-1_Final_Order.pdf | 2025-03-18 | AMY A. DILLON v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-531D-23-0313-A-1, March 18, 2025 | DC-531D-23-0313-A-1 | NP |
51 | https://www.mspb.gov/decisions/nonprecedential/Armstrong_ReshawnAT-0752-23-0584-I-1__3313166.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RESHAWN ARMSTRONG,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-23-0584-I-1
DATE: March 18, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Reshawn Armstrong , Tuscaloosa, Alabama, pro se.
Candice Geller , Esquire, and Debbie Stevens , Esquire, Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
upheld the removal based on a sustained charge of failure to cooperate during an
official investigation and found that the appellant did not prove her affirmative
defenses. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to supplement the
administrative judge’s analysis of the appellant’s claim of reprisal for equal
employment opportunity (EEO) activity, and to alternatively consider her claim
of reprisal for activity protected by the Family and Medical Leave Act of 1993
(FMLA), we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
On petition for review, the appellant asserts, among other things, that the
agency did not prove the charge, the agency violated her due process rights and
committed harmful procedural error, the agency did not consider all of the
relevant penalty factors, the administrative judge should have applied a different
legal standard, and he was biased against her. Petition for Review (PFR) File,
Tab 1.
We have considered her assertions regarding the administrative judge’s
decision to sustain specifications 2, 3, and 5 and the failure to cooperate charge.2
Initial Appeal File (IAF), Tab 48, Initial Decision (ID) at 7-12. For example, the
appellant asserts, among other things, that the testimony of agency witnesses was
2 We discern no error with the administrative judge’s decision not to sustain
specifications 1 and 4.2
“vague” and “inconsisten[t] with [the] proposal notice,” and the administrative
judge improperly put more weight on the agency’s affidavits and the declarations
than her affidavit and declaration. PFR File, Tab 1 at 22, 24.
In the initial decision, the administrative judge found the agency witnesses
more persuasive than the appellant on the issue of whether she failed to
cooperate. ID at 10. Notably, he stated that the answers of agency witnesses
were “clear, direct, congruous, and supported by prior written statements,”
whereas the appellant’s testimony was “unsubstantiated and conflicted with other
accounts.” Id. He found it more likely than not that the appellant deliberately
attempted to delay and obstruct the investigation as described by agency
witnesses, and he was not persuaded by her explanation that she refused to sign
an affidavit because it was inaccurate or incomplete. Id. The administrative
judge also found it more likely than not that the appellant returned on August 5,
2021, without the FMLA medical certifications even though she asked that the
meeting be scheduled for that purpose. 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 appellant has not presented such sufficiently sound reasons.
Accordingly, we affirm the administrative judge’s decision to sustain
specifications 2, 3, and 5, and the failure to cooperate charge. See Burroughs v.
Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (stating 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).
On review, the appellant asserts that the administrative judge “should have
also included” the but-for causation standard. PFR File, Tab 1 at 19. She
explains that the agency committed prohibited personnel practices “by placing3
[her] under an investigation for alleged refusal of mandates when the [a]gency
already knew [she] was not to work more than 8 hours in a day per her Health
Providers,” the FMLA entitles her to use hours towards non -voluntary overtime,
and she should not have been “placed in an unwarranted situation” to be charged
with failure to cooperate. Id. We interpret her assertion to relate to her EEO
reprisal and/or disparate treatment disability discrimination claims because the
administrative judge mentioned the but -for causation standard in his discussion of
the appellant’s EEO reprisal claim, and he noted that the same standard applied to
her disparate treatment disability discrimination claim.3 See ID at 15, 17. Even if
we consider her assertion regarding but -for causation standard in the context of
each of these claims, a different outcome is not warranted.
Regarding her claim of disability discrimination, we acknowledge that the
appellant’s refusal to accept mandatory overtime shifts in April 2021, which led
to the August 2021 investigation, stemmed, in part, from her medical provider’s
restrictions and was, therefore, at least indirectly related to her disability.
Nonetheless, the Rehabilitation Act does not immunize an employee with a
disability from being disciplined for misconduct in the workplace, provided that
the agency would impose the same discipline on an employee without a
disability. Laniewicz v. Department of Veterans Affairs , 83 M.S.P.R. 477, ¶ 5
(1999). The record does not reflect that the agency tolerated the sort of
misconduct that the appellant committed—failure to cooperate with an official
investigation—from employees who did not have a disability. Therefore, even if
her misconduct was somehow related to her disability, she has not shown that it
was a motivating factor in the agency’s decision to remove her. Because we
agree with the administrative judge that the appellant failed to show that her
3 The administrative judge also noted that the but-for causation standard applies to a
claim of retaliation for engaging in activity subject to the Rehabilitation Act. ID at 17
n.7. Even if we considered this alternative claim, the appellant fares no better. She was
given notice of her burden to prove such a claim, IAF, Tab 32 at 6, and she has not
persuaded us that retaliation for such activity was the but -for cause of the removal.4
disability was a motivating factor in the removal, ID at 18-20, we do not reach
the question of whether discrimination was a “but -for” cause of the removal
action, see Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 20-22.
Regarding her claim of reprisal for EEO activity, the appellant testified that
her 2021 EEO complaint included complaints about the agency’s requests for
clarifying information related to her FMLA Certification(s) and her assertion on
review appears to involve FMLA leave requests. IAF, Tab 43 -4 (testimony of the
appellant); PFR File, Tab 1 at 19. In Marcell v. Department of Veterans Affairs ,
2022 MSPB 33, ¶¶ 7-8, the Board held that a claim of reprisal for requesting
FMLA leave was not protected by 5 U.S.C. § 2302(b)(9), but it alternatively
considered whether this activity was protected by section 2302(b)(10), which
makes it a prohibited personnel practice to “discriminate for or against any
employee . . . on the basis of conduct which does not adversely affect the
performance of the employee . . . or the performance of others.” The Board in
Marcell concluded that, given the serious nature of the charge against the
appellant (threatening bodily injury to agency employees), the agency would have
removed him in the absence of his FMLA leave requests, among other things. Id.,
¶ 8. We modify the initial decision to alternatively analyze the appellant’s
potential claim of retaliation for FMLA activity under 5 U.S.C. § 2302(b)(10);
however, a different outcome is not warranted because the record reflects that the
removal for failure to cooperate in an official investigation was not because of, or
“on the basis of,” her FMLA leave requests or other activity.4
4 The appellant’s EEO complaint is not in the record. To the extent that the appellant’s
EEO activity, on which her reprisal claim is based, involved allegations of
discrimination or reprisal protected by Title VII, we agree with the administrative judge
that such activity was not a motivating factor in the agency’s removal action. ID
at 15-16. Even if we assumed for the purposes of our analysis that the EEO activity
involved allegations of disability discrimination, a different outcome is not warranted
because the appellant cannot meet her burden to prove but -for causation. Pridgen,
2022 MSPB 31, ¶¶ 44-47.5
We have also considered the appellant’s assertion that the agency
committed harmful procedural error because it denied her request for her
preferred union representative and violated her due process rights when it refused
to comply with her discovery requests. PFR File, Tab 1 at 19, 26. We agree with
the administrative judge that the appellant has not proven that being denied her
preferred representative would have caused the agency to reach a different result
in this matter. ID at 12-13. Moreover, the record reflects that the administrative
judge denied the appellant’s motion to compel because it did not comply with
5 C.F.R. § 1201.73(c)(1) and it was vague and conclusory. IAF, Tab 30 at 6. The
appellant has not shown that the administrative judge erred in this regard.
To support her contention on review that the agency did not consider all of
the relevant penalty factors,5 the appellant states that the agency waited 712 days
to remove her, and her performance appraisals were consistently “ above
acceptable .” PFR File, Tab 1 at 22 (emphasis in original). Importantly, the
deciding official considered the appellant’s “acceptable” performance during her
16-year tenure at the agency, but she concluded that it did not outweigh the
seriousness of her misconduct. IAF, Tab 38 at 13; ID at 21. We acknowledge
that there was a lengthy delay between the August 2021 misconduct and the
July 2023 removal; however, the fact of the delay does not, standing alone,
warrant mitigation of the penalty. For the reasons stated in the initial decision,
we agree with the administrative judge that removal was a reasonable penalty for
the sustained misconduct. See Hamilton v. Department of Homeland Security ,
117 M.S.P.R. 384, ¶ 11 (2012) (stating that removal is an appropriate penalty for
failure to cooperate with an investigation); Payne v. U.S. Postal Service ,
72 M.S.P.R. 646, 650 (1996) (stating that, when all of the agency’s charges are
sustained, but some of the underlying specifications are not sustained, the
5 The appellant does not appear to challenge the administrative judge’s nexus finding,
ID at 20, and we affirm his conclusion in this regard.6
agency’s penalty determination is entitled to deference and only should be
reviewed to determine whether it is within the parameters of reasonableness).
Finally, regarding the appellant’s claim of administrative judge bias, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep -seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540,
555 (1994)). We have found no evidence of such favoritism or antagonism by the
administrative judge.
We have considered the appellant’s remaining assertions on review, but
none warrant a different outcome.6
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
6 For example, the appellant asserts on review that she did not give written or verbal
consent for the Union to grieve or invoke arbitration. PFR File, Tab 1 at 18-19.
Because the administrative judge ruled in the appellant’s favor on the election of
remedies issue, we need not address this argument on review.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit 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.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.10
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Armstrong_ReshawnAT-0752-23-0584-I-1__3313166.pdf | 2025-03-18 | RESHAWN ARMSTRONG v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-23-0584-I-1, March 18, 2025 | AT-0752-23-0584-I-1 | NP |
52 | https://www.mspb.gov/decisions/nonprecedential/Hammond_Schwanda_G_DA-0752-20-0103-I-1_and_DA-0752-20-0103-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCHWANDA G. HAMMOND,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBERS
DA-0752-20-0103-I-1
DA-0752-20-0103-C-1
DATE: March 17, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Brian Henson , Esquire, Decatur, Georgia, for the appellant.
Temple Louise Wilson , Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed petitions for review of two initial decisions. The
initial decision in MSPB Docket No. DA-0752-20-0103-I-1 dismissed her
removal appeal as settled. The initial decision in MSPB Docket No. DA-0752-
20-0103-C-1 denied her petition for enforcement of the parties’ settlement
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
agreement, finding the agency in compliance with said agreement. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). On our own motion, we JOIN these appeals under
5 C.F.R. § 1201.36(b) because joinder will expedite processing of the cases and
will not adversely affect the interests of the parties. After fully considering the
filings in these appeals, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petitions for review. The initial decision issued in MSPB Docket No.
DA-0752-20-0103-I-1 is AFFIRMED. Except as expressly MODIFIED to
VACATE the administrative judge’s findings regarding the validity of the
settlement agreement and to include an analysis on an additional debt not covered
by the settlement agreement, we AFFIRM the initial decision in MSPB Docket
No. DA-0752-20-0103-C-1 .
BACKGROUND
On December 11, 2019, the appellant filed an appeal with the Board of her
December 11, 2019 removal from the Defense Contract Audit Agency.
Hammond v. Department of Defense, MSPB Docket No. DA-0752-20-0103-I-1,
Initial Appeal File (IAF), Tab 1. On March 13, 2020, the parties submitted a
settlement agreement resolving the appeal. IAF, Tab 31. The agency, among
other things, agreed that it would rescind its decision to remove the appellant,2
initiate an action to place the appellant on leave without pay for the period
December 12, 2019 through June 30, 2020, place the appellant in paid, non-duty
status (i.e. administrative leave) for the period July 1, 2020 through
September 12, 2020, and initiate an action with the Defense Finance Accounting
Service (DFAS) to request and support a waiver of the appellant’s “current debt
to the [a]gency of $1,622.70 for advanced sick leave not repaid.” Id. at 4-5. The
appellant agreed, among other things, to submit two Standard Forms (SF) 52, the
first stating that she voluntarily retired from the agency and the second stating
that she voluntarily resigned from the agency, both with an effective date of
September 12, 2020. Id. at 5. Furthermore, the settlement agreement states that
the appellant’s eligibility for voluntary early retirement (VERA) would be
calculated and determined solely by DFAS or the Office of Personnel
Management (OPM), and, if DFAS or OPM determined at any time that she was
not eligible for VERA, then the agency would process her voluntary resignation.
Id. at 7. The administrative judge issued an initial decision on March 19, 2020,
finding the settlement agreement lawful on its face and that the parties freely
entered into it and understood its terms, and dismissing the appeal as settled.
IAF, Tab 33, Initial Decision (ID). The administrative judge entered the
settlement agreement into the record for enforcement purposes. ID at 2.
On August 12, 2020, the appellant filed a petition for enforcement,
claiming that the agency breached the settlement agreement by manipulating her
leave and earnings and creating false debts. Hammond v. Department of Defense,
MSPB Docket No. DA-0752-20-0103-C-1, Compliance File (CF), Tab 1 at 4. On
September 1, 2020, she also filed a motion to rescind the settlement agreement.
CF, Tab 12. After retaining counsel, she set forth the following arguments in
support of her motion: the outstanding debts created by the agency demonstrated
that the agency would not implement the settlement agreement in good faith, the
agency failed to process her retirement as contemplated in the settlement3
agreement, and she was not properly apprised that DFAS might find her ineligible
for VERA. CF, Tab 15 at 5-6.
On October 7, 2020, the administrative judge issued an initial decision in
the compliance matter, denying the appellant’s petition for enforcement because
she did not prove that the agency failed to comply with the settlement agreement.
CF, Tab 16, Compliance Initial Decision (CID). She also addressed the
appellant’s arguments for nullification of the settlement agreement based on her
ineligibility for VERA, finding that the evidence did not support nullification on
the basis of a mutual mistake. CID at 7. On November 11, 2020, the appellant
filed a petition for review of the compliance initial decision, along with numerous
documents. Compliance Petition for Review (CPFR) File, Tabs 1-6. The agency
has responded in opposition to the appellant’s petition for review, CPFR File,
Tab 8, and the appellant has filed a reply, CPFR File, Tab 9.
On September 3, 2024, the Clerk of the Board advised the appellant that it
docketed her petition for enforcement in MSPB Docket No. DA-0752-20-0103-
C-1, filed with the regional office on September 1, 2020, as a petition for review
of the initial decision in MSPB Docket No. DA-0752-20-0103-I-1, as she was
challenging the validity of the settlement agreement that was the subject of the
initial decision in that matter. Petition for Review (PFR) File, Tab 2. The Clerk
notified the appellant that her petition for review in MSPB Docket No. DA-0752-
20-0103-C-1 concerning the compliance initial decision remained pending.
Id. at 1 n.1. Because the petition for review in MSPB Docket No. DA-0752-20-
0103-I-1 appeared untimely filed, the parties were provided an opportunity to
present argument and evidence on the issues of timeliness and the merits of the
appellant’s petition. Id. at 2-3. To assist the appellant, the Clerk attached a
“Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set
Aside the Time Limit” form. Id. at 5-7. The appellant did not respond. The
agency has filed a response in opposition to the appellant’s petition for review.
PFR File, Tab 3.4
DISCUSSION OF ARGUMENTS ON REVIEW
We vacate the administrative judge’s findings in the compliance initial decision
in MSPB Docket No. DA-0752-20-0103-C-1 that improperly ruled on the validity
of the settlement agreement.
In her compliance initial decision in MSPB Docket No. DA-0752-20-0103-
C-1, the administrative judge addressed the appellant’s claims that the settlement
agreement is invalid on the basis of mutual mistake. CID at 7; see CF, Tabs 12,
15. It is well settled that an attack on the validity of a settlement agreement must
be made in the form of a petition for review of the initial decision dismissing the
appeal as settled, and not in a petition for enforcement. See, e.g., Armstrong v.
Department of the Treasury, 110 M.S.P.R. 533, ¶ 10 (2009), aff’d in part, vacated
in part, and remanded, 591 F.3d 1358 (Fed. Cir. 2010); Virgil v. U.S. Postal
Service, 75 M.S.P.R. 109, 112 (1997). Thus, we modify the compliance initial
decision to vacate those findings that were not properly raised by the appellant in
a petition for enforcement.2 CID at 7. We consider the appellant’s pleadings that
challenge the validity of the settlement agreement as if they were a petition for
review of the initial decision in MSPB Docket No. DA-0752-20-0103-I-1.3
We find that the appellant did not prove that the settlement agreement is invalid;
thus, we affirm the initial decision in MSPB Docket No. DA-0752-20-0103-I-1.
The appellant requests that the Board invalidate the settlement agreement
and allow her to move forward with her hearing request on the agency’s removal
2 Many of the appellant’s arguments in support of her motion for recission of the
settlement agreement would not provide a basis for invalidation of a settlement
agreement but were properly raised in the context of compliance. CF, Tab 15 at 4-6;
see generally Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 6 (2010)
(explaining that an appellant may challenge the validity of a settlement agreement on
the basis that it was unlawful, involuntary, or the result of fraud or mutual mistake).
The administrative judge properly addressed those arguments in the compliance initial
decision, and, except as expressly set forth in this order, we do not disturb the
administrative judge’s findings on those issues. CID at 4-7.
3 Based on our disposition of this appeal, we need not resolve the issue of the timeliness
of the appellant’s petition for review or whether she established good cause for an
untimely filing of her petition for review.5
decision. PFR File, Tab 1; CF, Tabs 12, 15; CPFR File, Tab 1 at 6-7. 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). A party may challenge the validity of a settlement
agreement if she believes it was unlawful, involuntary, or the result of fraud or
mutual mistake. Wofford v. Department of Justice, 115 M.S.P.R. 468, ¶ 6 (2010).
The party challenging the validity of a settlement agreement bears a heavy burden
of showing a basis for invalidation. Id.
After fully considering the appellant’s arguments, we find that she has not
established a basis for invalidating the settlement agreement. The appellant’s
only cognizable argument is fraud or mutual mistake concerning her eligibility
for VERA: specifically, she argues that she was not properly apprised that DFAS
may find her ineligible for VERA, “as the information provided by the Agency
indicated that she would be eligible.” CF, Tab 15 at 5-6. However, the
settlement agreement expressly states that the agency’s approval of VERA would
be subject to and conditioned upon a determination from DFAS and/or OPM that
the appellant met all applicable eligibility requirements, and that, if DFAS and/or
OPM determined that the appellant was not eligible for VERA, the agency would
process her voluntary resignation. IAF, Tab 31 at 5-7 (paragraphs 3.d., 4.a., and
4.i.). Thus, as the parties’ agreed-upon terms address the possibility that the
appellant would not be able to retire as planned, we find no evidence of mutual
mistake. See generally As’Salaam v. U.S. Postal Service, 65 M.S.P.R. 417, 421
(1994) (a mutual mistake is material only if it relates to a fact in existence at the
time of the agreement). The terms of the settlement agreement expressly
addressing this possibility also contradict the appellant’s suggestion of fraud or
misrepresentation by the agency concerning her eligibility for VERA. IAF,
Tab 31 at 5-7 (paragraphs 3.d., 4.a., and 4.i.). Moreover, the appellant has not
identified any communications from the agency predating the March 2020
settlement agreement that supports her argument of misrepresentation.6
Accordingly, as we find the appellant’s arguments for invalidating the settlement
agreement unpersuasive, we affirm the initial decision dismissing the removal
appeal as settled. ID at 1-2.
We modify the initial decision in MSPB Docket No. DA-0752-20-0103-C-1 to
analyze an additional debt asserted by DFAS, but conclude, nevertheless, that the
appellant has not established that the agency breached the settlement agreement.
The appellant argues, among other things, that the agency created new
debts in place of the $1,622.70 debt for advanced sick leave waived by the
settlement agreement, and that all outstanding debts were to have been resolved
by the settlement agreement. CF, Tab 15 at 4; CPFR File, Tab 1 at 5. When a
contract is silent as to a term, the term is removed from the Board’s jurisdiction,
and the Board lacks the authority to unilaterally modify the material terms in a
settlement agreement. De Luna v. Department of the Navy, 58 M.S.P.R. 526, 530
(1993). Furthermore, it can be presumed that the parties intended the agreement
to be implemented in accordance with governing statutes and regulations. See
Morris v. U.S. Postal Service, 32 M.S.P.R. 358, 361 (1987). However, it is well
settled that implicit in any settlement agreement, as under other contracts, is a
requirement that the parties fulfill their respective contractual obligations in good
faith. Kuykendall v. Department of Veterans Affairs, 68 M.S.P.R. 314, 323
(1995).
The administrative judge, crediting the declaration of the DFAS Analyst
dated August 27, 2020, found the sources of the debts allegedly owed by the
appellant as follows: the appellant’s portion of health insurance premiums and
life insurance premiums unpaid since her removal in December 2019; a lump sum
paid to the appellant at the time of her removal for unused annual leave that was
restored upon her reinstatement; and an erroneous lump-sum payment deposited
in the appellant’s bank account on or about June 12, 2020, due to a payroll system
error caused by the presence of a negative sick leave balance upon her
reinstatement. CID at 5-6; CF, Tab 8 at 4-5. She additionally credited the DFAS7
analyst’s explanation concerning an erroneous pay deduction of a Thrift Savings
Plan (TSP) loan in July 2020 that was to be credited to the appellant directly from
TSP. CID at 6; CF, Tab 8 at 5. We agree with the administrative judge’s
conclusion that the appellant has not shown that the agency breached the
settlement agreement based on the existence of these debts and/or pay deductions.
CID at 4-6.
However, we modify the compliance initial decision to address an
additional debt mentioned by the DFAS analyst in her declaration: the DFAS
analyst stated that the agency had been working with DFAS to “reduce [the
appellant’s] negative sick leave balance by 65.5 hours,” suggesting a remaining
advanced sick leave balance that the agency did not seek to eliminate. CF, Tab 8
at 4. Furthermore, emails from the agency’s Assistant General Counsel to the
appellant communicating DFAS’s explanations for the sources of her debts also
acknowledge a remaining advanced sick leave balance of approximately
56.5 hours—after the agency had eliminated the $1,662.70 debt indicated in the
settlement agreement, which accounted for 63.5 hours. CF, Tab 8 at 14-19, Tab 9
at 29-30. Finally, with her petition for review, the appellant has submitted a new
audit of her debts provided by DFAS on October 28, 2020, which reflects that the
appellant was indebted for a remaining balance of 38.5 hours of advanced sick
leave at the time of her separation from the agency in September 2020.
CPFR File, Tab 6 at 5.4 Thus, we find that the evidence indicates an additional
advanced sick leave debt that appears to be unrelated to the lump sum
overpayment to the appellant in June 2020. CPFR File, Tab 6 at 4-5.
4 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). Because the appellant has shown that she
exercised due diligence in requesting information from DFAS prior to the close of the
record below, see, e.g., CF, Tab 8 at 20, and this document appears to be a response
from DFAS to those requests, we find that this information was not previously available
to the appellant and have, therefore, considered it. CPFR File, Tab 6 at 1-24.8
Nevertheless, we find that the evidence continues to support the
administrative judge’s finding that the agency fulfilled its obligation under the
express terms of the settlement agreement by clearing a debt of $1,622.70 for
advanced sick leave. CID at 4; see CF, Tab 7 at 16, 39-49, Tab 8 at 4. Although
the appellant has vaguely alleged that the agency changed previous pay codes
from hours worked to advanced leave, CF, Tab 1 at 4, Tab 15 at 4-5; CPFR File,
Tab 1 at 6-7, Tab 9 at 5, the administrative judge correctly found no evidence that
the agency maliciously manipulated the appellant’s records or created false debts
in breach of the implied covenant of good faith in the settlement agreement,
CID at 7.5 We find that any debt owed to the agency for a remaining advanced
sick leave balance in excess of the $1,662.70 covered under the terms of the
settlement agreement is outside the scope of the settlement agreement and,
consequently, the Board’s jurisdiction. CPFR File, Tab 7 at 16; see De Luna,
5 In addition to the audit provided by DFAS in October 2020, CPFR File, Tab 6 at 1-24,
the appellant also submits for the first time with her petition for review instructions
about the agency’s timekeeping system, CPFR File, Tabs 1-2, Tab 3 at 4-26; her master
pay history from January 5, 2019 through August 1, 2020, CPFR File, Tab 3 at 27-43,
Tabs 4-5, which she contends show that the agency’s efforts to waive her advanced sick
leave created a new debt, CPFR File, Tab 1 at 6-7; and a doctor’s note dated
November 28, 2018, CPFR File, Tab 6 at 25-30, which she contends shows that she was
able to telework and did not take advanced sick leave on certain dates for which she
was charged sick leave, CPFR File, Tab 1 at 7. The appellant has not shown that this
evidence was unavailable prior to the close of the record below despite her due
diligence, and, in any event, we fail to see how this evidence supports the appellant’s
contentions. See Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15 (explaining that
the Board will not grant a petition for review absent a showing that the new evidence is
of sufficient weight to warrant an outcome different from that of the initial decision);
5 C.F.R. § 1201.115(d). The appellant also submits, with her reply to the agency’s
response to her petition for review, evidence of time and attendance corrections entered
by the agency. CPFR File, Tab 9 at 6-8. As these records appear to have been provided
to the appellant by DFAS on December 9, 2020, in response to her Privacy Act Request
dated September 10, 2020, we consider it newly available evidence. Id. at 9, 13-14; see
Avansino, 3 M.S.P.R. at 214. We find that these records do not support the appellant’s
assertions of manipulations by the agency resulting in erroneous debts, CPFR File,
Tab 9 at 5; rather, they show that the agency converted 65.5 hours of advanced sick
leave (LG) to administrative leave (LN), consistent with the declarations of the Human
Resources Specialist and the DFAS analyst and pursuant to the terms of the settlement
agreement. CF, Tab 7 at 6, 16 (paragraph 3.f), 39, Tab 8 at 4; CPFR File, Tab 9 at 6-8.9
58 M.S.P.R. at 530. Accordingly, we affirm the compliance initial decision as
modified.
NOTICE OF APPEAL RIGHTS6
The initial decisions, as supplemented by this Final Order, constitute 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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on11
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or12
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
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
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 | Hammond_Schwanda_G_DA-0752-20-0103-I-1_and_DA-0752-20-0103-C-1_Final_Order.pdf | 2025-03-17 | SCHWANDA G. HAMMOND v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-0752-, March 17, 2025 | DA-0752-20-0103-C-1; DA-0752-20-0103-I-1 | NP |
53 | https://www.mspb.gov/decisions/nonprecedential/Tucker_JamesDE-4324-22-0298-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES TUCKER,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DE-4324-22-0298-I-1
DATE: March 17, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Tucker , Omaha, Nebraska, pro se
Rachel Palacios , Esquire, Ray Shackelford , and Matthew Mackey , Esquire,
Joint Base Andrews, Maryland, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action in his appeal under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA) (codified as amended
at 38 U.S.C. §§ 4301-4335), challenging his nonselection for a GS -13
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Attorney-Advisor position.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).
On review, the appellant argues, among other things, that two of the three
members of the interview panel, specifically, M.B. and K.M., expressed a
preference for civilian candidates and failed to properly weigh candidates’
military experience. Petition for Review (PFR) File, Tab 5 at 15-24. Even
assuming that this is true, a witness who testified on the appellant’s behalf,
Jonathan Dowling, a Commander in the Department of the Navy, was the third
2 The appellant filed his petition for review on July 5, 2023, almost 2 months after the
May 18, 2023 deadline contained in the initial decision. Initial Appeal File, Tab 30,
Initial Decision at 12; Petition for Review (PFR) File, Tab 5. On review, the appellant
argues that his petition for review is timely filed because, under the tolling provision of
the Servicemembers Civil Relief Act of 2003 (SCRA), the deadline to file his petition
for review was tolled until he was discharged from active duty, i.e., June 2, 2023, and
he filed his petition for review within 35 days of that date. PFR File, Tab 5 at 5, Tab 9.
The Board has held, under the SCRA, that military service automatically tolls the filing
period while the appellant is on active duty, and the appellant “need not show that the
circumstances of his military service actually impaired his ability to pursue his legal
rights in a timely fashion.” Neighoff v. Department of Homeland Security ,
122 M.S.P.R. 86, ¶ 10 (2015), quoting Henry v. U.S. Postal Service , 69 M.S.P.R. 555,
558 (1996). Accordingly, we find that the appellant timely filed his petition for review.2
member of the panel and did not rank the appellant as his top candidate. Initial
Appeal File (IAF), Tab 6 at 28; Tab 23 (testimony of Dowling).
Commander Dowling ranked the appellant as the third-best candidate,
recommending that he be the second alternate choice. IAF, Tab 6 at 28, Tab 9
at 57-59. Commander Dowling also admitted that any improprieties in the
selection process “did not impact . . . the [agency’s number one] choice.”3 IAF,
Tab 17 at 18. Accordingly, we discern no basis to disturb the findings that the
appellant did not establish that his military service was a motivating factor in the
agency’s decision not to select him, and even if he did, the agency demonstrated
that it would have made the same selection regardless. Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
Finally, separate from the appellant’s petition for review,
Commander Dowling has filed a second motion to intervene, reiterating the
arguments he made in his first motion to intervene, specifically, that the initial
decision has a direct effect on him because it undermines his credibility,
3 On review, the appellant submitted an email from the agency’s Director of Logistics
stating that, on August 2, 2022, M.B. said “[l]esson learned, do not hire reservists!”
PFR File, Tab 5 at 23-24, 137. As an initial matter, the Board does not condone
discrimination against individuals who served or are serving in the military. However,
an email that contains unsworn, uncorroborated hearsay is entitled to little evidentiary
weight. Jones v. Department of the Interior , 97 M.S.P.R. 282, ¶ 10 (finding that the
appellant’s unsworn, uncorroborated statement containing hearsay was entitled to little
weight). Regardless, even assuming that M.B. made this comment, it does not impact
our analysis that the appellant’s military experience was not a motivating factor in the
agency’s decision not to select him. Accordingly, we do not find that this evidence
constitutes a basis for granting the appellant’s petition for review. 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) .3
interferes with his ability to remain free from retaliation, and impacts his attempts
to obtain relief in his own complaints.4 Compare PFR File, Tab 1 at 2-5, 24-25,
with, PFR File, Tab 5 at 7-8, 24-25. The Board has already addressed these
arguments in its order denying Commander Dowling’s first motion to intervene.
PFR File, Tab 4 at 3-4. As Commander Dowling has offered no additional basis
for granting his second motion to intervene, we discern no reason to disturb our
previous ruling denying his request.
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.
4 The appellant also attached to his petition for review documentation related to
Commander Dowling’s various complaints with components of the Department of
Defense regarding claims of retaliation for reporting USERRA violations. PFR File,
Tab 5 at 36-262. As an initial matter, we offer no opinion regarding the validity of
Commander Dowling’s complaints. Nonetheless, because the appellant has not
explained how these documents are relevant to the issues on appeal, they do not serve
as a basis for disturbing the initial decision. Russo, 3 M.S.P.R. at 349 (stating that the
Board will not grant a petition for review based on new evidence absent a showing that
it is of sufficient weight to warrant an outcome different from that of the initial
decision).
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Tucker_JamesDE-4324-22-0298-I-1_Final_Order.pdf | 2025-03-17 | JAMES TUCKER v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-4324-22-0298-I-1, March 17, 2025 | DE-4324-22-0298-I-1 | NP |
54 | https://www.mspb.gov/decisions/nonprecedential/Garland_Rylan_D_DC-4324-20-0689-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RYLAN D. GARLAND,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-4324-20-0689-I-1
DATE: March 17, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Russell W. Woodlief , Esquire, Richmond, Virginia, for the agency.
BEFORE
Henry J. Kerner , Vice Chairman
Cathy A. Harris , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
On review, the appellant, who serves as a civilian technician in the Virginia
National Guard under the authority of 32 U.S.C. § 709(b), argues that USERRA
applies to him because he is a Federal employee. Petition for Review File, Tab 1
at 4-5. Even though 38 U.S.C. § 4303(4)(A), which the appellant cites, defines an
employer as a “person, institution, organization, or other entity that pays for the
salary or wages of the work performed,” the subsequent subsection, 38 U.S.C.
§ 4303(4)(B), makes clear that, “[i]n the case of a National Guard technician
employed under section 709 of title 32, the term ‘employer’ means the adjutant
general of the State in which the technician is employed.” Likewise, the
Department of Labor’s regulations implementing USERRA state that “[a]
National Guard civilian technician is considered a State employee for USERRA
purposes, although he or she is considered a Federal employee for most other
purposes.” 20 C.F.R. § 1002.306.
Based on the foregoing, the administrative judge correctly found that the
Board lacks jurisdiction over this appeal because a National Guard technician,
such as the appellant, is considered a state employee for USERRA purposes.
Initial Appeal File, Tab 9, Initial Decision (ID) at 6-8. This finding is consistent2
with the holding in Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 8
(2015), aff’d, 640 F. App’x 864 (Fed. Cir. 2016), in which the Board, relying on
the statute and regulations set forth above, found that a USERRA claim brought
against the Hawaii Air National Guard was outside of the Board’s jurisdiction.
Thus, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board has updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Garland_Rylan_D_DC-4324-20-0689-I-1_Final_Order.pdf | 2025-03-17 | RYLAN D. GARLAND v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-4324-20-0689-I-1, March 17, 2025 | DC-4324-20-0689-I-1 | NP |
55 | https://www.mspb.gov/decisions/nonprecedential/Wine_MitchDA-0353-24-0314-I-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DA-0353-24-0314-I-1
DATE: March 17, 2025
Mitch Wine , Mountain View, Arkansas, pro se.
Alexander Lane Stimac , Esquire, and Vincent Alexander , Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as barred by the doctrine of collateral estoppel .
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Wine_MitchDA-0353-24-0314-I-1_Order.pdf | 2025-03-17 | MITCH WINE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-0353-24-0314-I-1, March 17, 2025 | DA-0353-24-0314-I-1 | NP |
56 | https://www.mspb.gov/decisions/nonprecedential/McKinney_Danelle_C_DE-1221-23-0311-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANELLE CARLENE CRAWFORD
MCKINNEY,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-23-0311-W-1
DATE: March 17, 2025
David M. Weiman , Accokeek, Maryland, for the appellant.
Michael T. Mills , McPherson, Kansas, for the appellant.
Carl A. Lindstrom , Esquire, San Jose, California, for the appellant.
Gregory J. Thornton , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
granted her request for corrective action under the Whistleblower Protection Act.
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
To the extent that the appellant believes that the agency has failed to
comply with the administrative judge’s order, she may file a petition for
enforcement with the Denver Field Office, according to the instructions on
page 33 of the initial decision.
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | McKinney_Danelle_C_DE-1221-23-0311-W-1_Final_Order.pdf | 2025-03-17 | DANELLE CARLENE CRAWFORD MCKINNEY v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-23-0311-W-1, March 17, 2025 | DE-1221-23-0311-W-1 | NP |
57 | https://www.mspb.gov/decisions/nonprecedential/Bronner-Stafford_A._ChristinaAT-0752-16-0611-P-1_and_AT-0752-16-0683-P-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
A. CHRISTINA BRONNER-STAFFORD,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBERS
AT-0752-16-0611-P-1
AT-0752-16-0683-P-1
DATE: March 14, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Armand C. Stafford , Smyrna, Georgia, for the appellant.
Jeffrey Scott Brockmeier , Esquire, Santa Ana, California, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
The appellant has filed petitions for review of the addendum initial
decisions, which denied her request for compensatory damages because of the
agency’s good faith efforts to accommodate her, as set forth in 42 U.S.C.
§ 1981a(a)(3). For the reasons discussed below, we GRANT the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petitions for review, JOIN these appeals, and REVERSE the addendum initial
decisions. We FIND instead that the good faith defense, as described in
42 U.S.C. § 1981a(a)(3), does not bar the appellant from receiving compensatory
damages. We FURTHER FIND that the appellant is entitled to an award of
compensatory damages as follows: $379.60 in pecuniary compensatory damages
and $21,000 in nonpecuniary compensatory damages.
BACKGROUND
On May 1, 2017, the administrative judge reversed the appellant’s
constructive suspension (which lasted from May 30, 2016, to July 22, 2016, the
date of her removal), found that the agency committed disability discrimination,
and ordered the agency to cancel the suspension and retroactively restore her,
effective May 30, 2016. Bronner-Stafford v. Department of Defense ,
MSPB Docket No. AT-0752-16-0611-I-1, Initial Appeal File (0611 IAF), Tab 54.
Also, on this date, the administrative judge reversed the appellant’s removal on
due process grounds, found that the agency committed disability discrimination,
and ordered the agency to retroactively restore her, effective July 22, 2016.
Bronner-Stafford v. Department of Defense , MSPB Docket No. AT-0752-16-
0683-I-1, Initial Appeal File (0683 IAF), Tab 56. The agency filed petitions for
review, and the appellant filed cross petitions for review of these initial decisions.
The Board denied the agency’s petitions and the appellant’s cross petitions and
affirmed the initial decision in each matter. Bronner-Stafford v. Department of
Defense, MSPB Docket No. AT-0752-16-0611-I-1, Final Order (June 20, 2023);
Bronner-Stafford v. Department of Defense , MSPB Docket No. AT-0752-16-
0683-I-1, Final Order (June 20, 2023). The Equal Employment Opportunity
Commission (EEOC) concurred with the Board’s final decisions in these matters.
Remona P. v. Department of Defense , EEOC Petition No. 2023004216, 2023 WL
9190475 (Dec. 14, 2023).2
The appellant filed separate motions for compensatory damages for each
agency action. Bronner-Stafford v. Department of Defense , MSPB Docket No.
AT-0752-16-0611-P-1, Appeal File (0611 P-1 AF), Tabs 1, 6-10;
Bronner-Stafford v. Department of Defense , MSPB Docket No. AT-0752-16-
0683-P-1, Appeal File (0683 P-1 AF), Tabs 1, 6-9. In nearly identical addendum
initial decisions, the administrative judge denied her motions for compensatory
damages because of the agency’s good faith efforts to accommodate her, pursuant
to 42 U.S.C. § 1981a(a)(3). 0611 P-1 AF, Tab 22, Addendum Initial Decision
(AID) at 2-4; 0683 P-1 AF, Tab 21, AID at 2-4. In pertinent part, the
administrative judge found that the agency “engaged extensively in the interactive
process with the appellant attempting to address her conditions,” and he was
constrained to rule for the appellant in the underlying appeals because the agency
negligently failed to follow its own policy by obtaining a release from her health
care provider and failed to submit any countervailing medical evidence at the
hearing. 0611 AID at 3-4; 0683 AID at 3-4.
The appellant has filed substantially similar petitions for review of the
addendum initial decisions, the agency has filed a single response for both
appeals, and the appellant has filed a single reply for both appeals. 0611 P-1
Petition for Review (PFR) File, Tabs 1-2, 4; 0683 P-1 PFR File, Tabs 1-2, 4. In
pertinent part, the appellant contends on review that the administrative judge
failed to apply Kolstad v. American Dental Association , 527 U.S. 526 (1999), to
the good faith analysis, and he failed to consider evidence of the agency’s “guilt,”
including when it failed to follow its own policy, failed to engage in the
interactive process, and failed to discipline her supervisor. 0683 P-1 PFR File,
Tab 1 at 9-13. She also asserts that the administrative judge failed to address the
“requested amounts in this case” and her requested damages were reasonable and
appropriate. Id. at 14-15. 3
DISCUSSION OF ARGUMENTS ON REVIEW
We join the 0611 and 0683 compensatory damages appeals.
Joinder of two or more appeals filed by the same appellant may be
appropriate when it would expedite processing of the appeals and when it would
not adversely affect the interests of the parties. 5 C.F.R. § 1201.36(b). Given the
interrelatedness of the constructive suspension and removal actions, particularly
regarding the appellant’s claim of entitlement to compensatory damages, joinder
is appropriate here.
We reverse the addendum initial decisions and find that it is not appropriate to
apply the good faith defense, as set forth in 42 U.S.C. § 1981a(a)(3), to bar the
appellant from receiving an award of compensatory damages.
In the addendum initial decisions, the administrative judge found that the
appellant was barred from compensatory damages because of the application of
42 U.S.C. § 1981a(a)(3), which allows an employer to avoid liability for damages
for disability discrimination involving a failure to accommodate if it demonstrates
that it made a good faith effort to accommodate her disability. 0683 AID at 3-4;
0611 AID at 3-4. The agency’s good faith effort claim is akin to an affirmative
defense, and the agency bears the ultimate burden of persuasion on the issue.
0683 AID at 3 (citing Hocker v. Department of Transportation , 63 M.S.P.R. 497,
507 (1994), aff’d, 64 F.3d 676 (Fed. Cir. 1995) (Table) ).
We take no issue with the administrative judge’s statement that the agency
extensively engaged with the appellant during the interactive process, and it
failed to follow its own policy by obtaining a release from her health care
provider and failed to submit any countervailing evidence at the hearing.
0683 AID at 3-4; 0611 AID at 3-4. However, we are not persuaded that the
agency’s actions, in total, are sufficient to invoke the good faith defense to bar
the appellant’s claim for compensatory damages under 42 U.S.C. § 1981a(a)(3).
In particular, we are concerned that the appellant’s supervisor’s questions and
criticisms raised in his May 19, 2016 letter were not legitimate. 0683 IAF, Tab 74
at 119-20. A reasonable person reading the appellant’s medical documentation in
good faith would conclude that both her doctor and the physician’s assistant were
advising that she (the appellant) was capable of performing the full range of her
duties as long as she had a full-time telework accommodation. Id. at 123-38.
Additionally, the accommodation of full-time telework was reasonable because
the appellant had performed successfully with this accommodation for a period of
5 months just prior to her January 2016 absence. For these reasons, we find that
the agency has not proven that it engaged in good faith as set forth in 42 U.S.C.
§ 1981a(a)(3).
Legal framework for evaluating a motion for compensatory damages.
Under the Civil Rights Act of 1991, an employee may recover
compensatory damages from a Federal agency that engaged in unlawful and
intentional discrimination against her on the basis of her disability.2 42 U.S.C.
§ 1981a(a)(2)-(3); Edwards v. Department of Transportation , 117 M.S.P.R. 222,
¶ 9 (2012); see Danzie v. Department of the Army , EEOC Appeal No. 01A42575,
2004 WL 1763834 at *2 (July 28, 2004) (stating that compensatory damages are
available for violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., or Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791, et seq.). The Board may order
the payment of compensatory damages when there has been a finding that such
discrimination occurred. Edwards, 117 M.S.P.R. 222, ¶ 9; 5 C.F.R.
§ 1201.202(c). The Board defers to and adopts the EEOC’s criteria for proving
2 Even if we agree with the administrative judge’s finding that the agency negligently
failed to follow its own policy by obtaining a release from the appellant’s health care
provider, 0683 AID at 4; 0611 AID at 4, we find that the agency’s other actions were
intentional.5
both the entitlement to and the amount of compensatory damages.3 Edwards,
117 M.S.P.R. 222, ¶ 9; Sloan v. U.S. Postal Service , 77 M.S.P.R. 58, 70 (1997).
Section 102(a) of the Civil Rights Act authorizes the award of
compensatory damages for pecuniary losses and for nonpecuniary losses, such as
but not limited to emotional pain, suffering, inconvenience, mental anguish, and
loss of enjoyment of life, injury to character and reputation, and loss of health.
Edwards, 117 M.S.P.R. 222, ¶ 10; Heffernan v. Department of Health and Human
Services, 107 M.S.P.R. 97, ¶ 6 (2007); see 42 U.S.C. § 1981a(a)-(b).
Compensatory damages do not include back pay, interest on back pay, or any
other type of equitable relief authorized by the enforcement provisions of
Title VII. 42 U.S.C. §§ 1981a(b)(2), 2000e-5(g); Edwards, 117 M.S.P.R. 222,
¶ 10. To receive an award of compensatory damages, an appellant must
demonstrate that she has been harmed as a result of the agency’s discriminatory
action and must establish the extent, nature, and severity of the harm, as well as
the duration or expected duration of the harm. Edwards, 117 M.S.P.R. 222, ¶ 10.
We award the appellant $379.60 in total pecuniary compensatory damages for the
constructive suspension and removal actions.
Pecuniary damages are available for out-of-pocket expenses shown to be
related to the discriminatory conduct. Edwards, 117 M.S.P.R. 222, ¶ 12 (citing
Minardi v. U.S. Postal Service , EEOC Appeal No. 01981955, 2000 WL 33542026
at *2 (Oct. 3, 2000) ). Typically, these damages include reimbursement for
medical expenses, job hunting expenses, moving expenses, and other quantitative
out-of-pocket expenses. Edwards, 117 M.S.P.R. 222, ¶ 12 (internal citations
omitted). Claimants generally must document these expenses, typically with
receipts, bills, or physicians’ statements. Id.
3 Contrary to the appellant’s assertion on review, 0683 P-1 AF, Tab 6 at 5-6, the Board
is not authorized to award compensatory damages based only on the administrative
judge’s finding that the agency violated her due process rights in the removal appeal.6
In the constructive suspension appeal, the appellant sought $1,627.34 in
pecuniary damages as follows: medical costs ($1,619.99 for medical
appointments, services, prescriptions, and documentation and $7.35 for her Office
of Workers’ Compensation Programs (OWCP) filing “to offset her lost pay”) and
loss due to the denial of a reasonable accommodation on March 4, 2016.
0611 P-1 AF, Tab 6 at 14-18. In the removal appeal, the appellant sought to
recover $107,007.69 in pecuniary compensatory damages to include $2,367.68 in
medical costs,4 “[p]ay and [b]enefits in [g]eneral,”5 accrued leave, 2016 Thrift
Savings Plan (TSP) distribution and Individual Retirement Arrangement (IRA)
withdrawal amounts, payment for any adverse tax consequences of a back pay
award, missed step increases, $6,000 in reimbursement for services of a forensic
accounting firm, and “loss of promotability.” 0683 P-1 AF, Tab 6 at 15-21. The
agency stated that pecuniary compensatory damages in the constructive
suspension appeal should be limited to $300 (to account for the appellant’s
July 8, 2016 doctor visit) and $1,000 in the removal appeal.6 0683 P-1 AF,
Tab 16 at 9-14. We will review the appellant’s request for medical costs first and
then analyze her remaining requests.
Medical costs
The record reflects that the appellant had multiple medical conditions that
predated the constructive suspension and removal actions, including severe
depression, anxiety, insomnia, bowel problems, diabetes, and post-traumatic
stress disorder (PTSD). E.g., 0683 IAF, Tab 7 at 104, 123-38, 170-74, 176-77;
4 This amount appears to include the same $1,619.99 in medical costs that the appellant
sought in the constructive suspension compensatory damages appeal. 0683 P-1 AF,
Tab 6 at 15.
5 In this regard, the appellant sought back pay and benefits such as insurance, health
insurance, no interest loans and matching contributions, as well as increased tax
liability from a back pay award.
6 It is not clear which expenses the agency considered as recoverable pecuniary
compensatory damages related to the removal action.7
0683 P-1 AF, Tab 8 at 25. Importantly, we focus on the time period from the
constructive suspension to the removal to the order reversing these actions, i.e.,
from May 30, 2016, to May 1, 2017.7 Hollingworth v. Department of Commerce ,
117 M.S.P.R. 327, ¶ 23 (2012). We have reviewed the record in these appeals
closely so as not to award duplicative medical costs.
We have considered the appellant’s documentation that she submitted in
the compensatory damages appeals, including personal statements, spreadsheets
of expenses, medical documentation, billing documents, and receipts.
0611 P-1 AF, Tabs 7-10; 0683 P-1 AF, Tabs 7-9. When, as here, the appellant
has pre-existing conditions, the agency is only liable for the harm or aggravation
caused by the discrimination. Guajardo-Hartley v. Department of Agriculture ,
EEOC Appeal No. 01A02073, 2003 WL 21780270 at *6 (July 24, 2003). We
therefore must evaluate whether the appellant has shown that the agency’s actions
made any of her pre-existing conditions worse.
We have considered the appellant’s medical evidence regarding how the
agency’s actions leading up to the constructive suspension exacerbated her
depression, anxiety, and sleep issues.8 For example, a May 13, 2016 physician
assistant’s note in the underlying appeal stated that the appellant received a return
to work order that week, which caused a relapse in her depression; she had
worsening panic attacks, anxiety, and “more frequent nightmares,” and she was
working through her depression and anxiety in therapy and with medication
management. 0683 IAF, Tab 7 at 123-24. We have also considered the
7 The EEOC found that the agency demonstrated it made a good faith effort to
accommodate the appellant during the 2014-2015 timeframe, and thus, she was not
entitled to compensatory damages for its failure to provide her with a reasonable
accommodation. 0683 P-1 AF, Tab 7 at 4-24.
8 The appellant asserted that she took Nadolol for her nervous system and anxiety and
Effexor and Abilify for depression. 0683 P-1 AF, Tab 8 at 12. We take administrative
notice that the generic version of Effexor is Venlafaxine, and the generic version of
Abilify is Aripiprazole. Effexor XR Uses, Dosage & Side Effects - Drugs.com ; Abilify
Uses, Dosage, Side Effects, Warnings - Drugs.com .8
appellant’s non-medical evidence regarding the worsening of some of her
conditions during the relevant time frame. 0611 P-1 AF, Tab 6 at 15-17;
0683 P-1 AF, Tab 6 at 16-17.
Except for the May 13, 2016 physician assistant’s note, discussed above,
the appellant has not submitted any medical evidence to prove a causal
connection between the constructive suspension and removal and her worsening
conditions. See Hollingsworth , 117 M.S.P.R. 327, ¶ 11 (“Without medical
evidence indicating that the appellant’s medical conditions or the exacerbation of
those conditions were caused by the agency’s acts, the appellant fails to establish
that she incurred the expenses in question as a result of the agency’s conduct.”).
Moreover, she has not explained how some of her other medications related to
conditions that were proximately caused by or exacerbated by the agency’s
discrimination or how her co-pays related to doctor visits seeking to remedy
conditions that were proximately caused by or exacerbated by the agency’s
discrimination. See, e.g., Keller v. U.S. Postal Service , EEOC Appeal No.
01A34761, 2004 WL 2148754 at *1 (Sept. 15, 2004) (noting that the appellant
failed to demonstrate how each item she identified was proximately caused by the
agency’s action, for example, the reason she consulted doctors, the purposes of
the prescription drugs purchased, and how the agency was responsible for the
expenditure of the funds); Rastogi v. Broadcasting Board of Governors ,
EEOC Appeal No. 01A03707, 2003 WL 21997715 at *2 (Aug. 15, 2003) (“[T]he
list of appointments and expenses alone do not establish the requisite nexus
between the alleged harm and the discrimination.”). Finally, the appellant has not
cited, and we are not aware of, any authority to award her pecuniary
compensatory damages for vitamins, supplements, or her OWCP filing.
Based on our review of the appellant’s documentation, we award $379.60
in pecuniary compensatory damages for medical costs during the relevant time
frame: $300 for the July 8, 2016 doctor visit; $29.04 for Venlafaxine, $10.00 for
Aripiprazole, and $15.38 for Trazodone (for insomnia) on August 27, 2016; and9
$15.38 for Trazodone and $9.80 for Venlafaxine on January 12, 2017.
0611 P-1 AF, Tab 8 at 5; 0683 P-1 AF, Tab 8 at 5.
Other claimed pecuniary compensatory damages
As noted above, in the removal appeal, the appellant claimed other
pecuniary compensatory damages, including “[p]ay and [b]enefits in [g]eneral,”
accrued leave, 2016 TSP distribution and IRA withdrawal amounts, payment for
any adverse tax consequences of a back pay award, missed step increases,
reimbursement for services of a forensic accounting firm,9 and “loss of
promotability.”10 0683 P-1 AF, Tab 6 at 17-21. We have considered these
requests, but we conclude that the appellant is not entitled to recover
compensatory damages for any of these expenses.
For example, her premature IRA withdrawal in January 2016 occurred
months before the constructive suspension and removal actions. 0683 P-1 AF,
Tab 8 at 31. Additionally, compensatory damages do not include back pay,
interest on back pay, or any other type of equitable relief authorized by the
enforcement provisions of Title VII.11 Edwards, 117 M.S.P.R. 222, ¶ 10.
Moreover, the record reflects that the appellant had a TSP loan, and on
November 28, 2016, the TSP closed her loan by declaring a taxable distribution in
9 The appellant stated that she “engaged the services of McKenzie Forensic Auditors to
conduct a forensic audit of the [a]gency’s calculation [of] back[]pay, interest, leave,
TSP contributions, and impact to [her and her husband’s tax bracket for 2023].”
0683 P-1 AF, Tab 6 at 19. She stated that the cost of the audit was $6,000. Id.
10 In her request for pecuniary damages in the constructive suspension appeal, the
appellant referenced losses due to a denial of reasonable accommodations on
March 6, 2016. 0611 P-1 AF, Tab 6 at 16-17. However, the agency’s actions on this
date predate the constructive suspension and removal actions and are not relevant to our
analysis.
11 The administrative judge found in the compliance appeals that, with one exception
involving the agency’s failure to deduct TSP contributions from her back pay, the
agency complied with the Board’s final orders in the underlying appeals. See, e.g.,
Bronner-Stafford v. Department of Defense , MSPB Docket Nos. AT-0752-16-0611-C-1,
Initial Decision (Mar. 27, 2024), AT-0752-16-0683-C-1, Initial Decision
(Mar. 27, 2024). Neither party filed a petition for review of these initial decisions.10
the amount of $16,458.05. 0683 P-1 AF, Tab 8 at 32. However, she has not
persuaded us that the TSP’s decision to close the loan was due to the agency’s
discrimination. Finally, we have considered her assertion that she incurred
increased tax liability in the amount of $364 due to the premature IRA
distribution, the TSP’s decision to close her loan and declare a taxable
distribution, and a back pay award. 0683 P-1 AF, Tab 6 at 18, Tab 8 at 36. It is
not clear how she arrived at this amount. In any event, we deny her request for
compensatory damages in this regard because it is based, at least in part, on the
January 2016 premature IRA distribution and the TSP’s decision to close her
account in November 2016, which we have found were not caused by the
agency’s discrimination.12
We award the appellant $21,000 in total nonpecuniary compensatory damages
related to the constructive suspension and removal actions.
Nonpecuniary damages constitute the sums necessary to compensate an
injured party for actual harm, even where the harm is intangible. Edwards,
117 M.S.P.R. 222, ¶ 21. Nonpecuniary losses are losses that are not subject to
precise quantification, including emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, injury to professional standing, injury to
character and reputation, injury to credit standing, and loss of health. Id. An
award of compensatory damages for nonpecuniary losses should reflect the extent
to which the agency directly or proximately caused the harm and the extent to
which other factors also caused the harm. Id. The award should take into
12 Although the appellant did not include a forensic audit in either of the P-1 matters,
we found a January 2, 2024 audit by McKenzie Forensic Auditors, Inc. in the
compliance appeal. Bronner-Stafford v. Department of Defense , MSPB Docket No.
AT-0752-16-0683-C-1, Appeal File, Tab 8 at 103-118. The audit itself stated that it
was commissioned to conduct a forensic audit of “Back pay and Interest on Back Pay.”
Id. at 104. This report was related to the enforcement action, not the compensatory
damages appeal, and it does not address the appellant’s alleged increased tax liability.
Therefore, it is not relevant to our consideration of the issues in the compensatory
damages appeals, and we do not award her compensatory damages for the cost of the
audit. 11
account the severity and duration of the harm, although nonpecuniary damages
are limited to a maximum amount of $300,000. 42 U.S.C. § 1981a(b)(3)(D);
Edwards, 117 M.S.P.R. 222, ¶ 21. The EEOC has stated that the amount of a
nonpecuniary damage award should not be “monstrously excessive” standing
alone, should not be the product of passion or prejudice, and should be consistent
with the amount awarded in similar cases. Edwards, 117 M.S.P.R. 222, ¶ 21
(internal citations omitted).
The appellant requested $30,000 in nonpecuniary compensatory damages
involving the constructive suspension action and $100,000 in nonpecuniary
compensatory damages involving the removal action. 0611 P-1 AF, Tab 6
at 18-22; 0683 P-1 AF, Tab 6 at 21-26. The agency stated that nonpecuniary
compensatory damages should be limited to $700 in the constructive suspension
appeal and $15,000 in the removal appeal. 0683 P-1 AF, Tab 16 at 9-16.
Because the constructive suspension immediately preceded the removal, both
actions were reversed on same date, and the appellant’s statement and her
husband’s statement regarding her damages covered both actions, we consider her
claims together.
We find that the appellant suffered significant physical, emotional,
professional, and financial harm as a result of the agency’s discrimination related
to the constructive suspension and removal actions. For example, regarding
emotional harm, she stated that she experienced “[p]ain and suffering” during her
suspension because she was afraid of losing her job, and she felt “anguish, anger,
anxiety, and stress” after her removal. 0683 P-1 AF, Tab 8 at 38. She also stated
that she suffered “significant blows to [her] psyche, esteem, and [her] ability to
be a whole woman to care for [her] husband and family.” Id. She further stated
that she “lost a lot of trust in others and do[es] not make friends as easily,” her
family was inconvenienced, her husband had “to wait on her hand and foot,” she
was “still in therapy for periods of low self-esteem,” she still gets anxiety when
she drives past the office, and she has nightmares. Id. The appellant’s therapist12
stated that the appellant suffered “devastating anxiety on the job,” and
“experienced a persistent hostile work environment with discrimination,” she “is
continuing to deal with these issues,” and “she will continue to need
psychological and medical support for the foreseeable future.” Id. at 25. We
have also considered her husband’s statement, which validated the pain and
emotional distress that she suffered, and discussed “her loss of self-esteem, focus,
mental stability, mental capacity, emotional stability, and lack of intimacy.”
Id. at 40-41.
Regarding physical harm, the appellant asserted that her medications
“cause[d] harmful secondary symptoms with stomach, bowel problems, eating and
digestion problems,” and her depression medication caused, among other things,
suicidal ideation. Id. at 39. Her husband also stated that her depression
“impacted every aspect of [their] lives [including] intimacy, outside activities
with friend[s], [and] even activities in the home she once loved.” Id. at 42.
Regarding professional harm, she stated that she “lost access to training, special
projects, promotions, and continued working relationship[s] with leadership and
management.” Id. at 38. She also stated that she “went from being the most
highly productive GS -12 Termination Contract Officer to one that was blocked
from every chance or opportunity for growth and development.” Id. She further
stated that she was “ostracized, black balled, and deemed a threat” at work, and
she lost her “association and work group connections.” Id. She stated that, when
she returned to work following reinstatement, “there were many organizational,
process[,] and work changes.” Id. Finally, regarding financial harm, she asserted
that she was “the most successful and stable sibling of eight and provide[d]
support to [her] mother, sisters[,] and brothers as well as [her] adult children and
grandchildren,” but when she lost her income, she had to “cut[] back on support
for them.” Id. at 39.
In Hollingsworth, 117 M.S.P.R. 327, ¶¶ 15-26, the Board awarded
Ms. Hollingworth $15,000 in nonpecuniary compensatory damages for the time13
between her April 10, 2009 removal and the May 14, 2010 reinstatement
(13 months). In pertinent part, the Board noted that the appellant experienced
significant physical, emotional, professional, and financial harm, but she did not
demonstrate that any of the effects of that harm were permanent, long-term or
catastrophic. Id., ¶ 21. We have also considered the EEOC’s decision in
Kandi M. v. Department of the Navy , EEOC Petition No. 0320180066, 2019 WL
1011514 (Feb. 8, 2019). There, the administrative judge found that the facts were
similar to Hollingworth but because the duration of suffering was longer
(25 months from the constructive suspension to removal to reinstatement), the
administrative judge awarded $25,000 in nonpecuniary compensatory damages.
Id. at *1-2. The EEOC found no basis to disturb the administrative judge’s
analysis or conclusion. Id. at *5.
The severity of harm suffered by the appellant is similar to the harm
suffered by Ms. Hollingworth and the complainant in Kandi M., but the duration
of harm—11 months from the constructive suspension to the removal to the order
reversing the actions—is slightly less than the duration in Hollingworth and less
than half of the duration in Kandi M. Similar to Hollingsworth, we are not
persuaded that the appellant’s harm is permanent or catastrophic. Accordingly,
recognizing that nonpecuniary damages are not subject to precise quantification,
and considering the cited cases, all of the circumstances above, as well as
adjusting for inflation, we find that the appellant is entitled to an award of
$21,000 in nonpecuniary damages for the suspension and removal actions.13
13 We deny the appellant’s request for “[n]on-compensatory” actions, such as requiring
the agency to update its reasonable accommodation guidance, investigating certain
agency employees, and ensuring that the agency’s equal employment opportunity office
has independent legal counsel separate from the agency’s General Counsel.
0611 P-1 AF, Tab 6 at 21-22; 0683 P-1 AF, Tab 6 at 26-27. 14
ORDER
We ORDER the agency to issue a check to the appellant for compensatory
damages in the amount of $21,379.60, representing $379.60 in pecuniary
compensatory damages and $21,000.00 in nonpecuniary damages. 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 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).
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).
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.15
NOTICE OF APPEAL RIGHTS14
This is the final decision of the Merit Systems Protection Board in these
appeals. 5 C.F.R. § 1201.113(c). You may obtain review of this final decision.
5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time
limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703(b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.16
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on17
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or18
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
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. 19
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.20 | Bronner-Stafford_A._ChristinaAT-0752-16-0611-P-1_and_AT-0752-16-0683-P-1_Final_Order.pdf | 2025-03-14 | null | AT-0752-16-0611-P-1; AT-0752-16-0683-P-1 | NP |
58 | https://www.mspb.gov/decisions/nonprecedential/Wriglesworth_Sonia_I_DC-1221-18-0285-W-2_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONIA I. WRIGLESWORTH,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-1221-18-0285-W-2
DATE: March 14, 2025
Dennis L. Friedman , Esquire, Philadelphia, Pennsylvania, for the appellant.
Timothy D. Johnson , John J. Banaghan , and Jacob Nist , Fort Liberty, North
Carolina, for the agency.
Heather I. Gipson , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action whistleblower appeal on the grounds of
collateral estoppel . Vice Chairman Kerner has recused himself from
consideration of this case. Because there is no quorum to alter the administrative
judge’s initial decision, the initial decision now becomes the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Wriglesworth_Sonia_I_DC-1221-18-0285-W-2_Order.pdf | 2025-03-14 | SONIA I. WRIGLESWORTH v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-1221-18-0285-W-2, March 14, 2025 | DC-1221-18-0285-W-2 | NP |
59 | https://www.mspb.gov/decisions/nonprecedential/Wine_MitchDA-4324-24-0270-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DA-4324-24-0270-I-1
DATE: March 14, 2025
Mitch Wine , Mountain View, Arkansas, pro se.
Alexander L. Stimac , Esquire, and Vincent Alexander , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act
appeal for lack of jurisdiction . Vice Chairman Kerner has recused himself from
consideration of this case. Because there is no quorum to alter the administrative
judge’s initial decision, the initial decision now becomes the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Wine_MitchDA-4324-24-0270-I-1_Final_Order.pdf | 2025-03-14 | MITCH WINE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-4324-24-0270-I-1, March 14, 2025 | DA-4324-24-0270-I-1 | NP |
60 | https://www.mspb.gov/decisions/nonprecedential/Wine_MitchDA-1221-24-0316-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DA-1221-24-0316-W-1
DATE: March 14, 2025
Mitch Wine , Mountain View, Arkansas, pro se.
Alexander L. Stimac , Esquire, and Vincent Alexander , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Member
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 .
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Wine_MitchDA-1221-24-0316-W-1_Final_Order.pdf | 2025-03-14 | MITCH WINE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-1221-24-0316-W-1, March 14, 2025 | DA-1221-24-0316-W-1 | NP |
61 | https://www.mspb.gov/decisions/nonprecedential/Wine_MitchDA-0752-18-0116-C-4_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DA-0752-18-0116-C-4
DATE: March 14, 2025
Mitch Wine , Mountain View, Arkansas, pro se.
Alexander L. Stimac , Esquire, and Vincent Alexander , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s petition for enforcement of a settlement agreement. Vice
Chairman Kerner has recused himself from consideration of this case. Because
there is no quorum to alter the administrative judge’s initial decision, the initial
decision now becomes the final decision of the Merit Systems Protection Board in
this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b)
(5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the
Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Wine_MitchDA-0752-18-0116-C-4_Final_Order.pdf | 2025-03-14 | MITCH WINE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-0752-18-0116-C-4, March 14, 2025 | DA-0752-18-0116-C-4 | NP |
62 | https://www.mspb.gov/decisions/nonprecedential/Wine_MitchDA-4324-24-0257-I-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITCH WINE,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DA-4324-24-0257-I-1
DATE: March 14, 2025
Mitch Wine , Mountain View, Arkansas, pro se.
Alexander L. Stimac , Esquire, and Vincent Alexander , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act
(USERRA) appeal as a sanction for inappropriate and contumacious conduct .
Vice Chairman Kerner has recused himself from consideration of this case.
Because there is no quorum to alter the administrative judge’s initial decision, the
initial decision now becomes the final decision of the Merit Systems Protection
Board in this appeal. Title 5 of the Code of Federal Regulations,
section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered
as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Wine_MitchDA-4324-24-0257-I-1_Order.pdf | 2025-03-14 | MITCH WINE v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DA-4324-24-0257-I-1, March 14, 2025 | DA-4324-24-0257-I-1 | NP |
63 | https://www.mspb.gov/decisions/nonprecedential/Honesty_FrancesAT-0752-23-0336-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCES HONESTY,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-23-0336-I-1
DATE: March 14, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carson Bridges , Esquire, and Claire Ocana , Esquire, Dallas, Texas,
for the appellant.
Natalie Liem , Esquire, and Dana L. Myers , Esquire, Atlanta, Georgia,
for the agency.
Anthony Sokolowski , Esquire, New York, New York, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal on due process grounds and concluded that she
did not prove her disability discrimination affirmative defense. On petition for
review, the agency argues that the administrative judge erred in finding that the
agency violated her due process rights, and he failed to adjudicate the charge,
nexus, and reasonableness of the penalty. 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).
For a tenured public employee facing removal from her position, minimum
due process requires prior notice and an opportunity to respond. Cleveland Board
of Education v. Loudermill , 470 U.S. 532, 546 (1985). A deciding official may
not consider new and material information that the appellant was not aware would
be taken into consideration in connection with the charges or the penalty.
Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed. Cir. 2011); Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368, 1377 (Fed. Cir. 1999).
In determining whether a deciding official’s consideration of information violates
3
due process, the question is whether the information is “so substantial and so
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377.
When such a due process violation has occurred, the violation is not subject to the
“harmless error test,” and the appellant is entitled to a new constitutionally
correct administrative procedure. Id.
We discern no error with the administrative judge’s finding that the
deciding official’s consideration that the appellant was “insubordinate”—which
has an element of intent—constituted new and material information. Initial
Appeal File (IAF), Tab 31, Initial Decision (ID) at 7; see Ward, 634 F.3d
at 1280 n.2. (finding that “the materiality of the ex parte communication appears
to be self-evident from the [d]eciding [o]fficial’s admission”); Howard v.
Department of the Air Force , 118 M.S.P.R. 106, ¶ 6 (2012) (concluding that the
information in question was “clearly material” because the deciding official
admitted that it influenced his penalty determination). We further find that the
deciding official’s consideration of the appellant’s insubordination under the
circumstances was “so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Stone, 179 F.3d at 1377.
We have considered the agency’s arguments in its petition for review. For
example, the agency asserts that the deciding official, a “non-attorney,” used the
term “insubordinate” as a layperson, meaning “[n]ot obedient to the orders of
superiors,” whereas the administrative judge used the legal definition, i.e., a
willful and intentional refusal to obey an authorized order of a superior officer,
which the officer is entitled to have obeyed. PFR File, Tab 1 at 9-10. Compare
Walker v. Department of the Army , 102 M.S.P.R. 474, ¶ 8 (2006), with
insubordinate - Quick search results | Oxford English Dictionary . This argument
is not persuasive. Despite the deciding official’s non-attorney status, he testified
that he has been an agency employee for 20 years, and during that time, he served
4
as a District Manager, an Operations Supervisor, and a Labor Relations team
member. IAF, Tab 24-3, Hearing Recording (testimony of the deciding official).
The deciding official also has experience as a deciding official. E.g.,
Kortleever v. Social Security Administration , MSPB Docket No. AT-0752-23-
0289-I-1, Initial Decision (Jun. 10, 2024). Contrary to the agency’s assertion, the
deciding official’s experience in management, labor relations, and disciplinary
actions would make him familiar with the legal definition of “insubordinate.”
The agency also asserts that the administrative judge’s finding was
erroneous because a review of the context in which the deciding official used the
term “insubordinate,” particularly in relation to his other testimony, shows that he
did not mean it to imply intent. PFR File, Tab 1 at 10-14. It asserts that the
deciding official’s testimony as a whole supports the more plausible
interpretation that he considered the appellant’s failure to return to the office
following her receipt of the return-to-work notices without regard to any intent.
Id. at 12. We have considered this evidence, but a different outcome is not
warranted. Indeed, it is precisely because the deciding official stated that the
appellant’s absences were beyond her control that the “insubordinate” comment is
so problematic.
The agency also relies on the Board’s nonprecedential decision in Grina v.
Department of the Army , MSPB Docket Nos. DE-0752-21-0174-I-1, DE-0752-20-
0417-I-1, Final Order (Apr. 8, 2024), to support its assertion that there was no
due process violation. PFR File, Tab 1 at 17. In Grina, Final Order at * 2-3, the
Board found no due process violation when the deciding official considered the
appellant’s alleged untruthfulness an aggravating factor in his decision, but the
proposal notice only discussed her prior inconsistent statements. In pertinent
part, the Board found that the appellant was on notice that her inconsistent
statements might be a factor in the agency’s decision, she was aware of the
significance of her apparently contradictory statements, and the deciding official
did not consider information that was not included in the proposal notice or draw
5
any conclusions that might represent a departure from the reasons stated in the
proposal itself. Id. at *3. Grina is distinguishable, however, because, here, the
appellant was not, in any way, on notice that the deciding official considered her
insubordinate, and the deciding official’s statement in this regard was a departure
from the reasons stated in the proposal notice. Moreover, the Board is not
required to follow Grina in this matter because Grina is a nonprecedential
decision. See 5 C.F.R. § 1201.117(c)(2).
We have considered the agency’s remaining arguments on review, but none
warrants a different outcome. Because we affirm the administrative judge’s
decision to reverse the removal on due process grounds, we need not address the
agency’s arguments on review regarding whether it proved the excessive absences
charge, nexus, and/or the reasonableness of the penalty.2 PFR File, Tab 1
at 7, 18-20.
ORDER
We ORDER the agency to cancel the removal action and retroactively
restore the appellant, effective March 13, 2023. See Kerr v. National Endowment
for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, 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
2 The appellant does not challenge the administrative judge’s finding that she did not
prove her disability discrimination affirmative defense, ID at 7-13, and we affirm the
initial decision in this regard.
6
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
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
7
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
9
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
12
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).
13
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. | Honesty_FrancesAT-0752-23-0336-I-1_Final_Order.pdf | 2025-03-14 | FRANCES HONESTY v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-23-0336-I-1, March 14, 2025 | AT-0752-23-0336-I-1 | NP |
64 | https://www.mspb.gov/decisions/nonprecedential/McDermott_LanceSF-SF-0752-13-0633-C-1_and_0752-13-0633-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE MCDERMOTT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-13-0633-C-1
SF-0752-13-0633-X-1
DATE: March 14, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lance McDermott , Seattle, Washington, pro se.
Steven B. Schwartzman , Esquire, Seattle, Washington, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
On April 25, 2024, the Board issued an Order denying the appellant’s
petition for review and affirming the administrative judge’s compliance initial
decision, which found the agency in noncompliance with the decision in the
underlying appeal. McDermott v. U.S. Postal Service , MSPB Docket No. SF-0752-
13-0633-C-1, Compliance Petition for Review (CPFR) File, Tab 7, Order
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(April 25, 2024). For the reasons discussed below, we now find the agency in
compliance and DISMISS the appellant’s petition for enforcement and petition for
review.
DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
At the time relevant to the appellant’s initial appeal, he was employed with
the agency as a maintenance mechanic. McDermott v. U.S. Postal Service ,
MSPB Docket No. SF-0752-13-0633-I-1, Initial Appeal File (IAF), Tab 8 at 38.
Following his appeal of the agency’s May 30, 2013 decision to place him on
enforced leave, on April 28, 2015, an administrative judge issued an initial decision
sustaining the charge and the imposition of enforced leave, denying the appellant’s
affirmative defenses, and modifying the period of enforced leave. IAF, Tab 52,
Initial Decision (ID) at 9-26. Specifically, the initial decision ordered the agency
to, among other things, commence the enforced leave action on June 7, 2013;
restore the annual leave the appellant used during the period of May 30 to June 7,
2013; and pay the appellant for the appropriate amount of backpay, if any, with
interest, no later than 60 calendar days after the date the initial decision became
final. ID at 25.
The appellant filed a petition for review, and, following a remand order from
the Board concerning certain unaddressed affirmative defenses, McDermott v. U.S.
Postal Service, MSPB Docket No. SF-0752-13-0633-I-1, Remand Order (Oct. 13,
2015), the administrative judge issued a remand initial decision, which denied the
affirmative defenses at issue. McDermott v. U.S. Postal Service , MSPB Docket No.
SF-0752-13-0633-B-1, Remand File, Tab 36, Remand Initial Decision (Feb. 12,
2016) (RID). That decision became the final decision of the Board on the merits of
the appellant’s enforced leave appeal after his petition for review was denied as
untimely filed without good cause shown. McDermott v. U.S. Postal Service ,
MSPB Docket No. SF0752-13-0633-B-1, Final Order (Jan. 19, 2023) at 1, 5.
Accordingly, the administrative judge’s original orders concerning the modified2
commencement date of the enforced leave, the restoration of the appellant’s annual
leave, and the issuance of any relevant backpay with interest remained intact.
In the time between the April 28, 2015 initial decision and the time the
remand initial decision became final (January 19, 2023), the appellant retired. His
last day in a pay status with the agency was December 10, 2019. Thus, as of that
date, he became entitled to the value of his restored leave through the issuance of
backpay.2
On January 29, 2023, the appellant filed a petition for enforcement with the
Board. McDermott v. U.S. Postal Service , SF-0752-13-0633-C-1, Compliance File
(CF), Tab 1. In his petition for enforcement, he argued that the agency was not in
compliance with the administrative judge’s April 28, 2015 order because the
agency had not: (1) paid him 30 days of back pay; (2) restored his 8 days’ worth of
annual leave; (3) placed him on enforced leave consistent with agency and Office
of Personnel Management (OPM) regulations; or (4) given him written notice that
it had fully complied with the Board’s order. CF, Tab 1 at 5, Tab 6 at 6-7.
After developing the record, the administrative judge issued a compliance
initial decision finding that the agency must restore and pay the appellant for the
8-day annual leave period “as an undisputed amount.” CF, Tab 18, Compliance
Initial Decision (CID) at 5-7. He considered the agency’s argument that the
appellant refused to complete the requisite forms necessary for it to process the
annual leave restoration and backpay amount, but he explained that the agency’s
compliance was “not contingent” upon the appellant completing the relevant forms.
2 The appellant disputes that he retired from the agency in December 2019. McDermott v.
U.S. Postal Service , MSPB Docket No. SF-0752-13-0633-X-1, Compliance Referral File
(CRF), Tab 8 at 6. However, it appears he is disputing the nature of his separation from
the agency, rather than the fact that he separated as of that date—which is a matter of
record in at least one of his other appeals. See McDermott v. U.S. Postal Service , MSPB
Docket No. SF-0752-20-0705-I-1, Initial Decision (Jun. 8, 2021). The nature of the
separation is irrelevant to the back pay issues at hand, however. The only relevant issue is
the date of the separation, which determines the value of the appellant’s leave to be paid
out.3
CID at 5. He concluded that the agency failed to comply with the Board’s order to
restore the appellant’s annual leave for the period of May 30 to June 7, 2013, and to
pay the appellant for the appropriate amount of backpay, if any, with interest, as
ordered in the Board’s April 28, 2015 initial decision. CID at 7. Accordingly, he
granted the appellant’s petition for enforcement. Additionally, he again ordered
the agency to provide evidence that it complied with the order and to provide a
narrative explanation of how it arrived at its calculations, with an accounting of any
deductions and any other adjustments. CID at 7-8.
On June 7, 2023, the agency informed the Board that it had taken the actions
identified in the compliance initial decision. McDermott v. U.S. Postal Service ,
MSPB Docket No. SF-0752-13-0633-X-1, Compliance Referral File (CRF) , Tab 1. The
appellant’s petition for enforcement accordingly was referred to the Board for a
final decision on issues of compliance, pursuant to 5 C.F.R. § 1201.183(c).3 CRF,
Tab 2.
Separately, the appellant filed a petition for review purporting to challenge
the compliance initial decision, but primarily challenging the merits of the Board’s
decision in his underlying case. CPFR File, Tab 2. The agency responded to the
appellant’s petition for review, to which the appellant replied. CPFR File,
Tabs 5-6.
On April 25, 2024, the Board denied the appellant’s petition for review of the
compliance initial decision, leaving the CID as the operative compliance -related
order. CPFR File, Tab 7. Thus, the petition for enforcement was referred to the
3 As noted in the compliance initial decision, the Board’s regulations provide that, upon a
finding of noncompliance, the party found to be in noncompliance must do the following:
(i) to the extent that the party decides to take the actions required by the initial decision,
the party must submit to the Clerk of the Board, within the time limit for filing a petition
for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions
identified in the initial decision, along with evidence establishing that the party has taken
those actions; and (ii) to the extent that the party decides not to take all of the actions
required by the initial decision, the party must file a petition for review under the
provisions of 5 C.F.R. §§ 1201.114-.115. 5 C.F.R. § 1201.183(a)(6).4
Board’s Office of General Counsel for additional processing and issuance of a final
decision in both matters (the appellant’s petition for review, which the Board
denied in a non-final order; and the pending matter in which the agency had filed a
pleading asserting that it had complied with the CID). See 5 C.F.R. § 1201.183(c).
As explained below, the parties submitted additional pleadings following the
agency’s assertion of compliance, which we now address.
ANALYSIS
When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation he would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order by
a preponderance of the evidence.4 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence of
compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
The agency’s statement of compliance asserted that it sent the appellant
checks representing backpay and interest and that it is therefore compliant with the
Board’s orders. CRF, Tab 1 at 4. With this statement of compliance, the agency
included copies of the two letters it sent to the appellant informing him that it
issued him checks for the backpay and interest, photocopies of the checks, and a
copy of a backpay computation summary report demonstrating how the interest was
calculated. Id. at 6-11. In response, the appellant asserted, among other things,
4 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).5
that the agency calculated the back pay incorrectly, stating that the agency’s
explanation of how it arrived at the hours of restored annual leave “is not based on
any of the [a]gency’s or OPM’s [l]eave [r]estoration regulations or the official
record.” CRF, Tab 3 at 7-8. Specifically, he asserts he was entitled to 72 hours of
restored annual leave, as opposed to the 45.5 hours of annual leave restored by the
agency. Id.
An agency’s assertion of compliance must be supported by relevant,
material, and credible evidence of compliance in the form of documentation or
affidavits. Cuevas v. U.S. Postal Service , 90 M.S.P.R. 391, ¶ 5 (2001). In its
April 25, 2024 Order, the Board found that the documents submitted by the agency
were insufficient to demonstrate whether the appellant’s backpay and interest
award was correct and whether the agency is therefore compliant with the Board’s
order. Notably, the agency’s documentation did not include evidence, such as time
and attendance records, showing how much annual leave the appellant took
between May 30 and June 7, 2013, that he was entitled to have restored. Further,
neither the agency’s statement of compliance, nor its documentation in support
thereof, provided an explanation of the rate of pay it used to convert the appellant’s
restored annual leave to a monetary amount. CPFR File, Tab 7 at 7-8.
The Board therefore ordered the agency to submit satisfactory evidence of
compliance within 60 days of the date of the April 25, 2024 Order. Specifically,
the Board ordered that the evidence shall adhere to the requirements set forth in
5 C.F.R. § 1201.183(a)(6)(i), including submission of evidence and a narrative
statement of compliance. The Board further ordered that the agency’s submission
shall demonstrate that it properly calculated the appellant’s backpay according to
the appropriate amount of restored annual leave and related interest. CPFR File,
Tab 7 at 7-8.
On May 23, 2024, the agency submitted its evidence of compliance. CRF,
Tab 7. The agency provided evidence supporting its assertions, including a
declaration explaining the amount of restored annual leave and the rate for such6
leave, calculations explaining the amount of interest, and time and attendance
records. Id.
In a response, the appellant argued, among other things, that the agency’s
method of calculating the back pay is “not admissible,” because the declarant is not
the back pay coordinator responsible for personally completing the necessary back
pay forms. CRF, Tab 8. The appellant also raises other various issues with the
information provided by the agency. Nonetheless, the appellant has not identified
any specific errors in the amounts calculated by the agency in terms of the amount
of restored leave, the pay rate for such, or the amount of interest. The appellant’s
general charges of error do not rebut the agency’s detailed and specific evidence,
because they do not make specific, nonconclusory, and supported assertions of
continued noncompliance. Vaughan, 116 M.S.P.R. 319, ¶ 5.
In light of the foregoing, we find that the agency is in compliance with its
outstanding compliance obligations, and we dismiss the appellant’s petition for
enforcement and petition for review. 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. 7
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a9
courtappointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction.6 The court of appeals must receive your petition for review within
60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.11
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | McDermott_LanceSF-SF-0752-13-0633-C-1_and_0752-13-0633-X-1_Final_Order.pdf | 2025-03-14 | LANCE MCDERMOTT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-13-0633-C-1, March 14, 2025 | SF-0752-13-0633-C-1; SF-0752-13-0633-I-1; SF-0752-13-0633-X-1 | NP |
65 | https://www.mspb.gov/decisions/nonprecedential/Bennett_EricNY-0752-14-0073-C-2_and_NY-0752-14-0073-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC BENNETT,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBERS
NY-0752-14-0073-X-1
NY-0752-14-0073-C-2
DATE: March 13, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan Bell , Esquire, and Susan Tylar , Esquire, Syosset, New York, for
the appellant.
Daniel P. Kohlmeyer , Esquire, Jamaica, New York, for the agency.
Briana Martino , Des Plaines, Illinois, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
In an October 26, 2022 Order, the Board found the agency in noncompliance
with its final decision in the underlying appeal, which reversed the appellant’s
removal and ordered him reinstated with back pay and benefits, to the extent the
agency: (1) failed to pay him a $6,000 bonus as part of his back pay award; 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).
(2) failed to provide sufficient and clear information regarding the overtime hours
the appellant was entitled to in his back pay award. Bennett v. Department of
Transportation, MSPB Docket No. NY-0752-14-0073-C-2, Order (Oct. 26, 2022).
Subsequently, in the compliance referral matter, the Board issued Orders finding
that the agency complied with its obligations to pay the $6,000 bonus and to
determine and explain the total number of hours of overtime the appellant was
entitled to for the entire back pay period (754 hours). Bennett v. Department of
Transportation, MSPB Docket No. NY-0752-14-0073-X-1, Compliance Referral
File (CRF), Tabs 5, 11. However, the Board found that the agency remained in
noncompliance to the extent it failed to demonstrate that it properly calculated and
paid the appellant the appropriate amount of overtime back pay for the 754 hours of
overtime, with interest, and again ordered the agency to submit evidence and
explanation demonstrating compliance. CRF, Tab 11.
For the reasons discussed below, we now find the agency in compliance and
dismiss the petition for enforcement and the petition for review.
DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
The appellant, an Air Traffic Control Specialist, sustained an on -the-job
injury on March 25, 2011, and the Office of Workers’ Compensation Programs
(OWCP) accepted his claim for traumatic injury. Bennett v. Department of
Transportation, MSPB Docket No. NY-0752-14-0073-I-2, Refiled Appeal File,
Tab 21, Initial Decision (ID) at 2-3. Effective November 9, 2013, the agency
removed the appellant from Federal service due to his continuing unavailability for
duty, noting that he had not reported for regular, full -time duty since his March 25,
2011 injury. ID at 1, 12-13. The appellant appealed his removal to the Board. In a
July 29, 2016 initial decision, the administrative judge reversed his removal and
ordered the agency to reinstate him effective November 9, 2013, with all
appropriate back pay, interest, and restored benefits. ID at 27, 37. Neither party2
petitioned for review of the initial decision, which became final on September 2,
2016. ID at 39.
The appellant petitioned for enforcement of the initial decision, arguing, in
relevant part, that the agency failed to pay him a bonus he would have received but
for the removal and failed to correctly calculate his overtime back pay. Bennett v.
Department of Transportation , MSPB Docket No. NY-0752-14-0073-C-1,
Compliance File (C-1 CF), Tab 1; Bennett v. Department of Transportation , MSPB
Docket No. NY-0752-14-0073-C-2, Compliance File (C-2 CF), Tab 6 at 6-8. In an
August 1, 2017 compliance initial decision, the administrative judge found the
agency in noncompliance only to the extent it failed to pay the appellant $6,000 in
bonus payments. C-2 CF, Tab 11, Compliance Initial Decision (CID) at 3-6. The
appellant petitioned for review of the compliance initial decision.
In an October 26, 2022 Order, the Board affirmed the compliance initial
decision except as modified to find that the agency’s failure to present clear and
understandable information regarding its overtime back pay calculation constituted
an additional basis of agency noncompliance. Oct. 26, 2022 Order, ¶¶ 1, 8-13.
The Board ordered the agency to submit, into the compliance referral matter,
evidence and a narrative statement of compliance demonstrating that it properly
calculated the appellant’s pre-removal overtime hours and that the back pay
awarded to the appellant reflected that calculation. Id., ¶ 14.
After receiving responses from both parties, CRF, Tabs 3-4, the Board issued
a June 12, 2023 Order in this compliance referral matter finding the agency in
compliance with its obligation to pay the appellant $6,000 in bonus back pay but
still in noncompliance with its obligation to demonstrate that it had properly
calculated and paid the appellant the appropriate amount of overtime back pay with
interest for the entire back pay period (November 9, 2013, through November 6,
2016), CRF, Tab 5. Consequently, the Board again ordered the agency to submit
evidence and explanation demonstrating compliance. Id. at ¶¶ 14-18. Both parties
responded. CRF, Tabs 7-10.3
In an October 31, 2024 Order, the Board found that the agency had
established compliance with its obligation to determine and explain the total
number of hours of overtime the appellant was entitled to for the entire back pay
period and accepted the agency’s conclusion that he was entitled to back pay for a
total of 754 hours of overtime. CRF, Tab 11 at 4. However, the Board found that
the agency remained in noncompliance with its obligations to correctly calculate
and pay the appellant’s overtime back pay award and to present clear and
understandable evidence to the Board showing that such calculations and payments
were accurate. Id. at 5-8. Accordingly, the Board ordered the agency to submit
affidavit and documentary evidence and a detailed narrative establishing that it had
properly calculated and paid the appellant for 754 hours of overtime and interest on
that amount. Id. In addition, the Board ordered the agency to verify that it had in
fact paid the appellant the correct amount in back pay and at the correct hourly rate
for the 90.35 additional hours of overtime it conceded he was entitled to in its
July 2023 submissions. Id. Both parties have responded. CRF, Tabs 12-16.
ANALYSIS
When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation he would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order by
a preponderance of the evidence.2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence of
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4
compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
As noted above, the only outstanding issues in this compliance matter are
whether the agency has properly calculated and paid the appellant for 754 hours of
overtime and interest on that amount and adequately explained its actions to the
Board. CRF, Tab 11.
Overtime Back Pay
Under the Fair Labor Standards Act (FLSA), an employee’s overtime
entitlement includes: (1) the straight time rate of pay times all overtime hours
worked; plus (2) one-half times the employee’s hourly regular rate of pay times all
overtime hours worked. 5 C.F.R. § 551.512(a). An employee’s “straight time rate
of pay” is “equal to the employee’s rate of pay for his or her position (exclusive of
any premiums, differentials, or cash awards or bonuses),” with exceptions not
present here for annual premium pay. 5 C.F.R. § 551.512(b). An employee’s
“hourly regular rate” is the amount “computed by dividing the total remuneration
paid to an employee in the workweek by the total number of hours of work in the
workweek for which such compensation was paid.” 5 C.F.R. § 551.511(a).
In response to the Board’s October 31, 2024 Order, the agency submitted a
declaration under penalty of perjury from a Senior Payroll Program Specialist,
Leave and Earnings Statements (LES), and overtime pay calculation tables
reflecting that the agency paid the appellant for 754 hours of overtime via three
separate payments. CRF, Tab 12. These three payments were made as follows:
1.On December 20, 2016 (pay period 2016 -16), the agency paid the
appellant $48,573.25 in gross pay for 385 hours and 20 minutes of
overtime for the overtime he would have worked from pay period 5 of
2015 through pay period 17 of 2016, id. at 8-9, 17, 24;5
2.On May 23, 2017 (pay period 2017-11)3, the agency paid the appellant
$37,870.71 in gross pay for 309 hours and 50 minutes of overtime for
the overtime he would have worked from pay period 24 of 2013
through pay period 5 of 2015, id. at 9-10, 2, 25; and
3.On July 25, 2023 (pay period 2023-15), the agency paid the appellant
$7,447.27 in gross pay for an additional 58 hours and 50 minutes of
overtime he would have worked across 2013, 2015, and 2016, id.
at 10-11, 23, 26.
The Senior Payroll Program Specialist stated that the appellant’s July 2023
payment was only for 58 hours and 50 minutes of overtime, instead of the
90.35 additional hours of overtime the agency had previously stated he was entitled
to, because the other 32 hours had actually been paid in the May 2017 payment. Id.
at 11. She explained that the discrepancy occurred because she was provided
timecards for pay periods that had already been paid. Id.
The Senior Payroll Program Specialist also explained and provided
worksheets showing that the agency calculated the appellant’s overtime pay by
adding his “straight time rate” to his “FLSA rate,” which is ½ of his “hourly regular
rate,” and then multiplying this total by the number of overtime hours for each pay
period. Id. at 8, 13-14. She stated that, across the three payments, the appellant’s
straight time rate ranged from approximately $75 to $81 and the FLSA rate
fluctuated each pay period depending on how much other premium pay the
appellant received during the pay period. Id. at 9-11.
The appellant responded that the agency had failed to adequately explain the
overtime payments. CRF, Tab 13 at 5-6. He also argued that his standard hourly
rate was approximately $80 and that the overtime rate should thus be approximately
$120 per hour. Id. at 6. The appellant further argued that the agency had not
3 The Senior Payroll Program Specialist explained that the May 2017 overtime was paid
using an “outside the system payment,” which caused the payment made in pay period
2017-11 to be shown in the adjustment column of the LES for pay period 2017-12. CRF,
Tab 12 at 9-10, 19-22.6
adequately explained why the additional 90.35 hours of overtime back pay the
agency conceded it owed him had been reduced to 58 hours and 10 minutes. Id.
at 6-7.
On December 24, 2024, the agency submitted another declaration under
penalty of perjury from the Senior Payroll Program Specialist further explaining
the overtime pay calculations. CRF, Tab 14. In the declaration, she stated that the
appellant was paid at a different overtime hourly rate in each pay period due to the
fluctuating FLSA rate and that each rate could be determined from the tables
provided in its prior submission by dividing the total overtime pay for each pay
period by the number of overtime hours shown. Id. at 8-9 (citing CRF, Tab 12
at 24-27). She noted that a sample of three pay periods from the tables reflected
hourly overtime rates of $125.74, $123.24, and $122.08. Id. at 9.
In a January 21, 2025 reply, the appellant argued that the Senior Payroll
Program Specialist’s declaration was confusing to the extent it referred to four
overtime payments, as she previously stated there were three. CRF, Tab 15 at 4-5.
He also argued that the agency had still failed to explain why it represented that the
appellant was owed an additional 90.35 hours of overtime but then only paid him
for 58 hours and 10 minutes of overtime in its July 2023 payment. Id. at 6.
On January 30, 2025, the agency submitted another affidavit from the Senior
Payroll Program Specialist addressing the appellant’s concerns. CRF, Tab 16. The
appellant did not respond to the agency’s final submission.
After carefully considering the parties’ submissions, we find that the
agency’s evidence and explanation establishes that it correctly applied the FLSA
overtime formula to determine the appellant’s overtime pay rate for each pay
period and applied those rates to the hours of overtime owed per pay period. CRF,
Tabs 12, 14, 16; 5 C.F.R. § 551.512. We further find that the agency has shown
that it paid the appellant $48,573.25 for 385 hours and 20 minutes of overtime in
December 2016; $37,870.71 for 309 hours and 50 minutes of overtime in
May 2017; and $7,447.27 for 58 hours and 50 minutes of overtime in July 2023—7
i.e., a total of $93,891.23 for the full 754 hours of overtime owed to him at an
average overtime hourly rate of $124.52 ($93,891.23 divided by 754 = $124.52).
CRF, Tab 12 at 8-10, 17-27. Although the appellant argued that the agency’s first
two responses to the Board’s October 31, 2024 Order failed to adequately explain
its overtime calculations, he has not presented any specific challenge to the
agency’s calculation of his hourly overtime rate—the average of which exceeds the
$120 rate to which he argued he was entitled—and has not disputed the agency’s
evidence showing that he has now been paid for the full 754 hours of overtime.
CRF, Tabs 13, 15.
To the extent the appellant remains unsatisfied with the agency’s explanation
as to why it stated in July 2023 that it owed him an additional 90.35 hours of
overtime but then paid him only for an additional 58 hours and 50 minutes of
overtime, we conclude this discrepancy does not preclude a finding of compliance.
The Senior Payroll Program Specialist explained that part of the 90.35 overtime
hours she believed had not yet been paid to the appellant had in fact been paid in the
prior back pay payment and that the error resulted from her receipt of official time
cards that had already been paid. CRF, Tab 12 at 11. In any event, the agency’s
evidence shows that the appellant has been paid for the full 754 hours of overtime
back pay in accordance with the Board’s Order. CRF, Tab 11.
In light of the above, we find the agency in compliance with its obligation to
pay the appellant the appropriate amount of overtime back pay.
Interest on the Overtime Back Pay
Under the Back Pay Act, an employee is entitled to interest on, inter alia,
overtime back pay he receives as part of his Back Pay Award. See 5 U.S.C.
§ 5596(b)(1)(A)(i), (2)(A); see also 5 C.F.R. § 550.803, .806. Such interest:
(i) shall be computed for the period beginning on the effective date of
the withdrawal or reduction involved and ending on a date not more
than 30 days before the date on which payment is made;8
(ii) shall be computed at the rate or rates in effect under section 6621(a)
(1) of the Internal Revenue Code of 1986 during the period described in
clause (i); and
(iii) shall be compounded daily.
5 U.S.C. § 5596(b)(2)(B); 5 C.F.R. § 550.806. During the back pay period at issue
in this appeal (November 9, 2013, through November 6, 2016), the interest rate
under section 5596(b)(2)(B)(ii) was 3% until January 1, 2016, and then increased
to 4% through the remainder of the back pay period. OPM Fact Sheet: Interest
Rates Used for Computation of Back Pay, https://www.opm.gov/policy-data-
oversight/pay-leave/pay-administration/fact-sheets/interest-rates-used-for-
computation-of-back-pay/ (last visited Mar. 12, 2025).
In its first response to the Board’s October 31, 2024 Order, the agency
provided the Senior Payroll Program Specialist’s declaration, LES, and overtime
hours and pay tables showing that the agency paid the appellant interest in the
following three payments:
1.On December 20, 2016 (pay period 2016-16), the agency paid the
appellant $2,062.20 in interest on the $48,573.25 overtime payment for
overtime he would have worked from pay period 5 of 2015 through pay
period 17 of 2016, id. at 8-9, 17, 24;
2.In May 2017 (pay period 2017-11), the agency paid the appellant
$28,369.21 in interest on the $37,870.71 overtime payment for
overtime he would have worked from pay period 24 of 2013 through
pay period 5 of 2015, id. at 9-10, 19, 25; and
3.On July 25, 2023 (pay period 2023-15), the agency paid the appellant
$2,678.69 in interest on the $7,447.27 in overtime pay for additional
overtime he would have worked in 2013, 2015, and 2016, id. at 10-11,
23, 26.
The appellant responded that the agency’s explanation regarding the interest
payments was unclear, did not demonstrate that such payments were made, and did9
not demonstrate how they were calculated. CRF, Tab 13 at 5-7. In response, the
agency submitted the Senior Payroll Program Specialist’s second declaration, in
which she attested that the agency calculated the interest payments using the
Internal Revenue Service (IRS) Tax Interest Software, which uses interest rates set
by the IRS, “calculates compound interest on a daily basis and displays it on a pay
period basis,” and bases the interest payment on the full payment for the pay period
through the official pay date. CRF, Tab 14 at 10. She stated that the interest on the
overtime reflected on the LES with an end date of May 27, 2017, was “actually paid
and reflected in the preceding LES with an ending date of ‘2017 -05-13’,” but that
the other two interest payments were reflected on the same LES as the payment for
the overtime itself. Id. at 9-10.
The appellant responded that the agency had still failed to clearly explain the
interest payments. CRF, Tab 15 at 4-5. In particular, he argued that the Senior
Payroll Program Specialist referenced four overtime payments in her latest
declaration, even though she previously stated there were only three. Id. He also
questioned why the $28,369.21 in interest on the $37,870.71 overtime payment was
“so much” and how it could be paid before the actual overtime payment. Id.
The Senior Payroll Program Specialist responded under penalty of perjury
that the interest was processed normally in pay period 2017 -11 through the official
pay date for the pay period (May 23, 2017) and that the associated overtime
payment was sent to the bank on May 19, 2017, which was before the official pay
date for pay period 2017 -11. CRF, Tab 16 at 7. However, because the overtime
payment was paid via the “paid daily” process, it showed on the LES for pay period
2017-12. Id. Regarding the amount of the $28,369.21 interest payment, the Senior
Payroll Program Specialist explained that the interest was calculated from the time
the payment should have been paid until it actually was paid, compounding on a
daily basis, at the applicable rate provided by the IRS in its tax software, rather than
“simple interest.” Id. at 8. Lastly, she explained that her reference to four overtime
payments was a misstatement on her part; she clarified that there were four10
payments in total that included interest but only three payments that included
overtime. Id. at 8. The appellant did not respond.
We find that the agency’s evidence and explanation establish that it has
properly calculated and paid the appellant the correct amount of interest on the
overtime back pay in accordance with 5 U.S.C. § 5596(b)(2)(B). In so finding, we
credit the Senior Payroll Program Specialist’s declarations under penalty of perjury
that the agency calculated the interest on the overtime back pay from the time the
appellant would have earned the overtime pay through the official pay date of the
overtime payment and used the IRS -provided interest rates to calculate the interest,
which was compounded daily. CRF, Tab 14 at 10, Tab 16 at 8. The appellant has
not denied receiving the three interest payments or identified any specific error in
the agency’s calculations. Accordingly, we find the agency in compliance with its
obligation to calculate and pay the correct amount of interest on the overtime back
pay payments and to explain its calculations to the Board.
CONCLUSION
In light of the foregoing, we find that the agency is in compliance with its
outstanding compliance obligations and dismiss the appellant’s petition for
enforcement and the petition for review. 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 must11
file your attorney fees motion with the office that issued the initial decision on your
appeal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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.12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a13
courtappointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction.5 The court of appeals must receive your petition for review within
60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.15
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16 | Bennett_EricNY-0752-14-0073-C-2_and_NY-0752-14-0073-X-1_Final_Order.pdf | 2025-03-13 | ERIC BENNETT v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. NY-0752-14-0073-C-2, March 13, 2025 | NY-0752-14-0073-C-2; NY-0752-14-0073-X-1 | NP |
66 | https://www.mspb.gov/decisions/nonprecedential/Johns_DeLonSF-1221-23-0257-W-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DELON JOHNS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-23-0257-W-1
DATE: March 13, 2025
DeLon Johns , Hemet, California, pro se.
Scott Ayers , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Member
ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action
whistleblower reprisal appeal . Vice Chairman Kerner has recused himself from
consideration of this case. Because there is no quorum to alter the administrative
judge’s initial decision, the initial decision now becomes the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be
considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any3
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s4
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Johns_DeLonSF-1221-23-0257-W-1_Order.pdf | 2025-03-13 | DELON JOHNS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-23-0257-W-1, March 13, 2025 | SF-1221-23-0257-W-1 | NP |
67 | https://www.mspb.gov/decisions/nonprecedential/Doe_JohnCB-1208-25-0020-U-1_Order_On_Stay_Request.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL
EX REL. JOHN DOE,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
CB-1208-25-0020-U-1
DATE: March 5, 2025
THIS STAY ORDER IS NONPRECEDENTIAL1
Hampton Dellinger , Esquire, and Erik Snyder , Esquire, Washington, D.C.,
for the petitioner.
Bruce D. Fong , Esquire, Oakland, California, for the petitioner.
John Doe , pro se.
Steven C. Brammer , Esquire, and Domiento C.R. Hill , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Member
ORDER ON STAY REQUEST
Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)
requests that the Board stay for 45 days the probationary termination of John Doe,
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and 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 above captioned former employee/relator, and the probationary terminations of
numerous other individuals who were employed by the agency and terminated
during their probationary periods since February 13, 2025, based on letters stating:
“The [a]gency finds, based on your performance, that you have not demonstrated
that your further employment at the [a]gency would be in the public interest.” OSC
submits that a 45-day stay will “minimize the adverse consequences of the apparent
prohibited personnel practice” while it further investigates these allegations and
the agency’s “systemic action to terminate probationary employees.” Special
Counsel ex rel. John Doe v. Department of Agriculture , MSPB Docket No.
CB-1208-25-0020-U-1, Stay Request File (SRF), Tab 1 at 21.
For the reasons discussed below, OSC’s request is GRANTED.
BACKGROUND
On February 28, 2025, OSC filed a stay request on behalf of Mr. Doe, in
which it states that it has reasonable grounds to believe that the agency engaged in
prohibited personnel practices under, among other things, 5 U.S.C. § 2302(b)(12),2
by terminating him in violation of the Federal laws and regulations governing
reductions-in-force (RIFs) and probationary terminations. SRF, Tab 1 at 4-5.3
2 Because I find that OSC has reasonable grounds to believe that the agency committed a
prohibited personnel practice pursuant to 5 U.S.C. § 2302(b)(12) when it terminated
Mr. Doe and the other former agency employees during their probationary periods, I need
not address OSC’s allegations and arguments regarding 5 U.S.C. § 1216(a)(4) at this
time.
3 The agency has filed an opposition to the stay request, and OSC has filed a reply. SRF,
Tabs 2-3. I do not consider these additional submissions. The statute at 5 U.S.C.
§ 1214(b)(1)(a)(iii), by mandating that a Board Member decide the stay request within
3 working days, does not provide an opportunity for agency comment on an initial stay
request. Special Counsel v. Department of Transportation , 59 M.S.P.R. 556, 558 (1993);
Special Counsel ex rel. Schwarz v. Department of the Navy , MSPB Docket No.
CB-1208-17-0022-U-2, Order, ¶ 7 (Jul. 25, 2017) (stating that the purpose of the stay is to
maintain the status quo for a finite period of time, and consistent with that purpose,
Congress gave the agency no right to respond to OSC stay requests). Indeed, in contrast
to the procedures for an initial stay request described in 5 U.S.C. § 1214(b)(1)(A), which
afford no agency comment, the procedures in section 1214(b)(1)(C) explicitly provide for
an agency comment on a stay extension request.2
OSC also filed the stay request on behalf of “all other probationary employees that
[the agency] has terminated since February 13, 2025,” pursuant to letters stating:
“The [a]gency finds, based on your performance, that you have not demonstrated
that your further employment at the [a]gency would be in the public interest.” Id.
at 4. OSC asserts that it has reasonable grounds to believe that the agency engaged
in prohibited personnel practices against Mr. Doe and the other probationary
employees who were terminated since February 13, 2025, pursuant to these mass
termination letters. Id. at 5.
OSC alleges that, on February 13, 2025, the agency terminated Mr. Doe, a
GS-5 Forestry Technician in the competitive service, during his probationary
period. Id. at 8. With its stay request, OSC provides a copy of Mr. Doe’s
termination letter and a declaration, made under penalty of perjury, from Mr. Doe
attesting to the circumstances surrounding his termination. Id. at 8-9, 26-28. In
Mr. Doe’s declaration, he states that he “received only positive feedback about
[his] performance,” he was “never counseled or disciplined and was given no
indication that [he] had any performance or conduct deficiencies,” and he received
a “Fully Successful” performance appraisal on January 15, 2025. Id. at 26. OSC
also asserts that Mr. Doe’s declaration and other evidence obtained by OSC
indicate that Mr. Doe’s supervisor was not consulted about his termination and was
unaware that he was going to be terminated until just hours before he received his
letter but would have recommended that he be retained. Id. at 8-9. OSC further
asserts that Mr. Doe received a termination letter signed by a Director of Human
Resources Management, which specified his job title and the date that he started
working at the agency. Id. at 9, 27. OSC asserts that the letter stated that
termination was based on Mr. Doe’s “performance,” but it provided no explanation
of how his performance was deficient or any other individualized analysis. Id.
OSC also asserts that it gathered evidence indicating that the letter Mr. Doe
received was identical to the mass termination letters received by every other
probationary employee whom the agency has terminated since February 13, 2025.3
Id. at 9. OSC provides with its stay request a “sample” of 29 other probationary
termination letters.4 Id. at 10 n.8, 47-105.
ANALYSIS
Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC “may request any member of the
Merit Systems Protection Board to order a stay of any personnel action for 45 days
if [OSC] determines that there are reasonable grounds to believe that the personnel
action was taken, or is to be taken, as a result of a prohibited personnel practice.”
Such a request “shall” be granted “unless the [Board] member determines that,
under the facts and circumstances involved, such a stay would not be appropriate.”
5 U.S.C. § 1214(b)(1)(A)(ii). OSC’s stay request need only fall within the range of
rationality to be granted, and the facts must be reviewed in the light most favorable
to a finding of reasonable grounds to believe that a prohibited personnel practice
was (or will be) committed. Special Counsel ex rel. Tines v. Department of
Veterans Affairs , 98 M.S.P.R. 510, ¶ 5 (2005). Deference is given to OSC’s initial
determination, and a stay will be denied only when the asserted facts and
circumstances appear to make the stay request inherently unreasonable. E.g.,
Special Counsel v. Department of Veterans Affairs , 50 M.S.P.R. 229, 231 (1991).
At issue in the instant stay request is 5 U.S.C. § 2302(b)(12), which provides
that it is a prohibited personnel practice to “take or fail to take any other personnel
action if the taking of or failure to take such action violates any law, rule, or
regulation implementing, or directly concerning, the merit system principles
contained in [5 U.S.C. § 2301].” 5 U.S.C. § 2301, in turn, enumerates nine merit
system principles for Federal personnel management. 5 U.S.C. § 2301(b)(1)-(9).
Thus, to establish that an agency’s action constitutes a prohibited personnel
practice under 5 U.S.C. § 2302(b)(12), the following three factors must be met:
(1) the action constitutes a “personnel action” as defined in 5 U.S.C. § 2302(a);
(2) the action violates a law, rule, or regulation; and (3) the violated law, rule, or
4 The names of the individuals who were terminated were redacted from these letters.4
regulation is one that implements or directly concerns the merit system principles.
See Special Counsel v. Harvey , 28 M.S.P.R. 595, 599-600 (1984), rev’d on other
grounds sub nom. , Harvey v. Merit Systems Protection Board , 802 F.2d 537 (D.C.
Cir. 1986).5
Here, OSC states that the personnel actions at issue, i.e., the probationary
terminations, violate the following laws and regulations governing RIFs and
probationary terminations: (1) 5 U.S.C. § 3502; (2) 5 C.F.R. part 351; and
(3) 5 C.F.R. § 315.801 et seq. SRF, Tab 1 at 11-12. OSC asserts that the identified
statute and regulations concern five of the nine merit system principles. Id. at 12
(citing 5 U.S.C. § 2301(b)(1), (2), (5), (6), (8)(A)). These five identified principles
are as follows:
Recruitment should be from qualified individuals from appropriate sources
in an endeavor to achieve a work force from all segments of society, and
selection and advancement should be determined solely on the basis of
relative ability, knowledge, and skills, after fair and open competition which
assures that all receive equal opportunity.
All employees and applicants for employment should receive fair and
equitable treatment in all aspects of personnel management without regard to
political affiliation, race, color, religion, national origin, sex, marital status,
age, or handicapping condition, and with proper regard for their privacy and
constitutional rights.
The Federal work force should be used efficiently and effectively.
Employees should be retained on the basis of the adequacy of their
performance, inadequate performance should be corrected, and employees
should be separated who cannot or will not improve their performance to
meet required standards.
Employees should be—
5 The Board’s decision in Harvey, 28 M.S.P.R. at 599, references section 2302(b)(11).
The Veterans Employment Opportunities Act of 1998 added a new prohibited personnel
practice at 5 U.S.C. § 2302(b)(11), resulting in the redesignation of the former (b)(11) to
(b)(12). Blount v. Office of Personnel Management , 87 M.S.P.R. 87, ¶ 2 n.2 (2000).5
(A)protected against arbitrary action, personal favoritism, or coercion for
partisan political purposes.
5 U.S.C. § 2301(b)(1), (2), (5), (6), (8)(A). OSC asserts that agencies are
prohibited from circumventing the requirements as set forth in the RIF statute and
regulations, which apply equally to probationary employees, the evidence indicates
that the agency improperly terminated Mr. Doe and the other probationary
employees without reference to those rights, and the agency’s actions denied
Mr. Doe and the other probationary employees the substantive and procedural
rights to which they are entitled under RIF procedures. SRF, Tab 1 at 13.
In pertinent part, OSC asserts that, based on the evidence it has reviewed,
including guidance from the Office of Personnel Management (OPM), documents
and interviews with agency officials, public statements, and the “mass termination
notices” that were issued to Mr. Doe and the other probationary employees since
February 13, 2025, it has reasonable grounds to believe that the agency terminated
probationary employees not to eliminate poor performers, but instead as part of a
reorganization, which required the use of RIF procedures. Id. at 14-15 (citing
5 C.F.R. § 351.201). Specifically, OSC asserts that OPM guidance led the agency
to terminate all probationary employees that it had not designated as “mission
critical,” which demonstrated that these terminations were actually a “planned
elimination . . . of [non-mission-critical] functions or duties.” Id. at 15 (citing
5 C.F.R. § 351.203). OSC also asserts that OPM’s guidance indicated that the
agency should terminate probationary employees based on their “performance,” but
it explained that “performance” in this context meant “the current needs and best
interest of the [G]overnment, in light of the President’s directive to dramatically
reduce the size of the [F]ederal workforce.” Id. (citing Exhibit 5). OSC further
asserts that the evidence indicates that Mr. Doe and the other probationary
employees were terminated not based on their individual fitness for Federal
service, but rather because they were performing functions that the Government
wished to eliminate. Id. Finally, OSC asserts that the conclusion that these6
probationary terminations were part of a reorganization is highlighted by a
February 11, 2025 Executive Order, which directed agencies to start planning for
RIFs, and prioritized eliminating “offices that perform functions not mandated by
statute or other law” and excluded “ functions related to public safety, immigration
enforcement, or law enforcement.” Id. at 15 (emphasis in original).
OSC avers that this evidence indicates that the agency terminated Mr. Doe
and the other probationary employees as part of a restructuring plan to eliminate
positions that are not mission critical, and eliminating positions for this reason
required compliance with RIF regulations. Id. at 16. Accordingly, OSC avers that
there are reasonable grounds to believe that the agency improperly circumvented
RIF regulations, which provide for an orderly process of determining which
employees are retained, rather than separated, and ensuring that those decisions are
made according to merit-based factors. Id. OSC asserts in this regard that proper
application of RIF regulations could allow some probationers to keep their jobs or
be reassigned to new positions, and the agency’s failure to follow RIF procedures
deprived Mr. Doe and the other probationary employees of an additional period of
employment, compensation, benefits, career transition assistance information,
possible accrual of tenure, as well as due process rights. Id. at 16-18.
Particularly considering the deference that must be afforded to OSC at this
initial stage, see supra pp. 4-5, I find that there are reasonable grounds to believe
that the agency engaged in a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(12). First, OSC reasonably alleges that the agency took a personnel
action under 5 U.S.C. § 2302(a) when it terminated Mr. Doe and other probationary
employees. SRF, Tab 1 at 11; see Smart v. Department of the Army , 98 M.S.P.R.
566, ¶ 10 (recognizing that a probationary termination is a personnel action under
5 U.S.C. § 2302(a)(2)(A)), aff’d, 157 F. App’x 260 (Fed. Cir. 2005); see also
Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 9 (recognizing that
section 2302(a)(2)(A) defines “personnel action” as including, among other things,7
disciplinary or corrective actions, decisions regarding pay or benefits, and any
other significant change in duties, responsibilities, or working conditions).
Second, OSC identifies laws and regulations related to RIFs that it believes
the agency violated. SRF, Tab 1 at 11. In this regard, OSC asserts that the
probationary terminations violated 5 U.S.C. § 3502 and 5 C.F.R. part 351 because,
given the real reason for these terminations, i.e., the elimination of non-mission-
critical positions, the agency was required to follow RIF laws and regulations. Id.
at 13-18; see Bielomaz v. Department of the Navy , 86 M.S.P.R. 276, ¶ 11 (2000)
(indicating that probationary employees are included in RIF procedures);
Coleman v. Federal Deposit Insurance Corporation , 62 M.S.P.R. 187, 189-90
(1994) (holding that an appellant who lacked status to directly appeal his
termination to the Board could nonetheless claim that his termination was part of an
improper RIF); see also Cox v. Tennessee Valley Authority , 41 M.S.P.R. 686, 689
(1989) (concluding that the agency “was required to invoke RIF procedures” when
it released a competing employee from his competitive level when the release was
required because of a reorganization6); Perlman v. Department of the Army ,
23 M.S.P.R. 125, 126-27 (1984) (noting the agency admitted that the removal was
not based upon Mr. Perlman personally or the performance of his duties,
concluding that the agency should have, but failed to, afford him any procedural or
substantive RIF rights when it effected his removal as part of a reorganization, and
ordering the agency to cancel the removal action and provide him with back pay);
5 C.F.R. § 351.201(a)(2) (stating, in relevant part, that “[e]ach agency shall follow
this part when it releases a competing employee from his or her competitive
level . . . when the release is required because of . . . [a] reorganization.”)
(emphasis supplied).
Third, OSC argues that 5 U.S.C. § 3502 and 5 C.F.R. part 351 concern,
among other merit system principles, 5 U.S.C. § 2301(b)(6) and 5 U.S.C.
6 Reorganization means the “planned elimination, addition, or redistribution of functions
or duties in an organization.” 5 C.F.R. § 351.203. 8
§ 2301(b)(8)(A), which provide that employees should be retained on the basis of
the adequacy of their performance, separated when they cannot or will not improve
their performance to meet required standards, and protected against arbitrary
action.7 SRF, Tab 1 at 12. The term “directly concerning” as used in 5 U.S.C.
§ 2302(b)(12) is undefined by statute or regulation, and the legislative history of
the Civil Service Reform Act of 1978 provides no clear explanation as to the
intended meaning of the term. See Harvey, 28 M.S.P.R. at 602. Absent a distinct
definition in a statute or regulation, the words in a statute are assumed to carry their
“ordinary, contemporary, common meaning.” Dean v. Department of Agriculture ,
99 M.S.P.R. 533, ¶ 16 (2005) (citing Perrin v. United States , 444 U.S. 37, 42
(1979); Union Pacific R.R. Co. v. Hall , 91 U.S. 343, 347 (1875); Butterbaugh v.
Department of Justice , 91 M.S.P.R. 490, ¶ 13 (2002), rev’d on other grounds ,
336 F.3d 1332 (Fed. Cir. 2003)). The primary dictionary definition of the adverb
“directly” is “in a direct manner.” Directly, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/directly (last visited Mar. 5, 2025);
see Maloney v. Executive Office of the President , 2022 MSPB 26, ¶ 13 (explaining
that, in interpreting the “ordinary, contemporary, common meaning” of words, the
Board may refer to dictionary definitions). The primary dictionary definition of the
verb “concern” is “to relate to: be about.” Concern, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/concern (last visited Mar. 5, 2025).
Thus, the ordinary meaning of “directly concerning” is to relate to something
without an intervening element. Cf. United States v. Regan , 221 F. Supp. 2d 666,
671 (E.D. Va. 2002) (applying dictionary definitions to interpret “directly
concerned” in a separate statutory context and finding that the term means to relate
to something in a straightforward manner).
7 As the legislative history of the Civil Service Reform Act explains, “[t]he probationary
or trial period . . . is an extension of the examining process to determine an employee’s
ability to actually perform the duties of the position.” S. Rep. No. 95-969, at 45 (1978).9
Applying this meaning, and affording OSC the requisite discretion at this
stage, see supra pp. 4-5, I find it reasonable to posit that 5 U.S.C. § 3502 and
5 C.F.R. part 351, which prescribe RIF procedures that take into account efficiency
or performance ratings, directly concern the merit system principle set forth in
5 U.S.C. § 2301(b)(6) and 5 U.S.C. § 2301(b)(8)(A).8 See Wilburn v. Department
of Transportation , 757 F.2d 260, 262 (Fed. Cir. 1985) (explaining that the RIF
regulations reflect a congressional concern for fairness and limit an agency’s
discretion in filling a vacancy during a RIF); cf. Motor Vehicle Mfrs. Ass’n of
U.S. v. State Farm Nut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983) (finding that an
agency action would be arbitrary and capricious under the Administrative
Procedure Act when, among other things, it has entirely failed to consider an
important aspect of the problem or offered an explanation for its decision that runs
counter to the evidence before the agency). This finding is consistent with the
Board’s longstanding application of the well-established maxim that a remedial
statute should be broadly construed in favor of those whom it was meant to protect.
Willingham v. Department of the Navy , 118 M.S.P.R. 21, ¶ 14 (2012); see Dean,
99 M.S.P.R. 533, ¶ 19 (applying this maxim in interpreting the term “relating to”
for purposes of the Veterans Employment Opportunities Act of 1998). Considering
the deference that should be afforded to OSC in the context of an initial stay request
and the assertions made in the instant stay request, I find that there are reasonable
grounds to believe that the agency terminated Mr. Doe during his probationary
period in violation of 5 U.S.C. § 2302(b)(12).9
8 Because I find herein that OSC has made a sufficient showing regarding 5 U.S.C.
§ 2301(b)(6), (8)(A) as it relates to 5 U.S.C. § 3502 and 5 C.F.R. part 351, I need not
address OSC’s allegations regarding 5 C.F.R. § 315.801 et seq. or the three other
identified merit system principles at this time.
9 I note that then-Member Raymond A. Limon granted OSC’s request for a stay based on
similar allegations in Special Counsel ex rel. John Doe v. Department of Agriculture ,
MSPB Docket No. CB-1208-25-0018-U-1, Order on Stay Request (Feb. 25, 2025).10
OSC also asks the Board to grant a stay request for “all other probationary
employees that [the agency] has terminated since February 13, 2025,” pursuant to
letters stating: “The [a]gency finds, based on your performance, that you have not
demonstrated that your further employment at the [a]gency would be in the public
interest.” SRF, Tab 1 at 23. On March 3, 2025, I issued an Order, pursuant to
5 C.F.R. § 1201.136(e), directing OSC to provide additional information regarding
its request to stay the terminations of individuals other than Mr. Doe. SRF, Tab 4.
In its response, OSC provided a list of 5,692 former employees, including Mr. Doe,
who were terminated during their probationary periods; it stated that this list was
provided by the agency on March 3, 2025, and it explained why it could not provide
a definitive list of all affected individuals. Special Counsel ex rel. John Doe v.
Department of Agriculture , MSPB Docket No. CB-1208-25-0020-U-2, Stay
Request File 2 (SRF-2), Tab 2 at 7-8, 10-100.10 For example, OSC states that the
agency cautioned that this number was still in flux due to corrections, rehirings,
and changes to mission-critical designations. Id. at 7. Indeed, OSC asserts that, on
February 24, 2025, the agency provided documentation indicating that, as of
February 18, 2025, it had terminated 5,950 probationary employees. Id. OSC
further asserts that the number of probationary terminations may continue to
change and it is not practicable for OSC to “track the moving target of how many
individuals are subject to its stay request each day.” Id. at 8. Because there is a
possibility that additional individuals, not specifically named in the agency’s
response, may be affected by these probationary terminations, and given the
assertions made in OSC’s initial stay request and the deference to which we afford
OSC in the context of an initial stay request, I find that there are reasonable
grounds to believe that the agency terminated the aforementioned probationary
employees, in violation of 5 U.S.C. § 2302(b)(12).
10 In granting OSC’s initial stay request, I have considered the evidence and argument
filed in the MSPB Docket Nos. CB-1208-25-0020-U-1 and CB-1208-25-0020-U-2
matters.11
ORDER
Based on the foregoing, I grant OSC’s stay request for Mr. Doe and all other
probationary employees whom the agency has terminated since February 13, 2025,
pursuant to letters stating: “The [a]gency finds, based on your performance, that
you have not demonstrated that your further employment at the [a]gency would be
in the public interest.” Accordingly, a 45-day stay of Mr. Doe’s termination and
the probationary terminations of the aforementioned probationary employees are
GRANTED. The stay shall be in effect from March 5, 2025, through and including
April 18, 2025.
It is further ORDERED as follows:
(1)During the pendency of this stay, Mr. Doe shall be placed in the
position that he held prior to the probationary termination. Likewise,
all other probationary employees whom the agency has terminated
since February 13, 2025, pursuant to letters stating, “The [a]gency
finds, based on your performance, that you have not demonstrated that
your further employment at the [a]gency would be in the public
interest,” shall be placed in the positions that they held prior to the
probationary terminations;
(2)The agency shall not effect any changes in the aforementioned
employees’ duties or responsibilities that are inconsistent with their
salary or grade level, or impose upon them any requirement which is
not required of other employees of comparable position, salary, or
grade level;11
11 OSC and the agency should cooperate in good faith to notify the individuals to whom
this Order applies of this Order’s issuance and of the measures ordered herein.12
(3)Within 5 working days of this Order, the agency shall submit evidence
to the Clerk of the Board showing that it has complied with this
Order;12
(4)Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B), and 5 C.F.R. § 1201.136(b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before April 3, 2025; and
(5)Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b) must be received by the Clerk of the Board on or before
April 10, 2025.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
12 Submissions to the Clerk of the Board should be filed under MSPB Docket
No. CB-1208-25-0020-U-2 and served only on OSC or the agency, as appropriate.13 | Doe_JohnCB-1208-25-0020-U-1_Order_On_Stay_Request.pdf | 2025-03-05 | null | CB-1208-25-0020-U-1 | NP |
68 | https://www.mspb.gov/decisions/nonprecedential/Spassova_Maria_A_DC-1221-22-0496-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA SPASSOVA,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-1221-22-0496-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maria A. Spassova , Great Falls, Virginia, pro se.
Stephanye Snowden , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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).
On review, the appellant argues that the administrative judge ignored
portions of her appeal and committed procedural error by not allowing discovery
on jurisdiction and by dividing the proceedings instead of considering her
multiple Office of Special Counsel (OSC) files in a single appeal. She argues
that, when she informed OSC of the Letter of Reprimand at issue in Complaint 1
(MA-22-000539), she was reporting an abuse of authority, and that the agency
retaliated against her for that disclosure or activity by taking actions described in
her subsequent OSC complaints, such as not allowing her to compete for a detail,
systematically harassing her, and issuing her a Counseling Memorandum. She
also argues that jurisdictional discovery should have been permitted under the
Federal Rules of Civil Procedure and that discovery would have clarified her
disclosure concerning the SAS software, among other matters.
We find no error in the administrative judge’s decision to consider the
appellant’s multiple OSC complaints in separate appeals. To the extent the
appellant argues that the agency retaliated against her for Complaint 1 and the2
disclosures made therein, as she previously alleged before OSC in Complaint 2
(MA-22-001437), she has not been prevented from pursuing that retaliation claim
in the appropriate proceeding, which was refiled at the regional office on
December 15, 2023, under MSPB Docket No. DC-1221-23-0094-W-2.2 See
Spassova v. Department of Agriculture , MSPB Docket No. DC-1221-23-0094-
W-1, Initial Decision (Aug. 17, 2023).
It does not appear that the appellant timely objected to the administrative
judge’s decision to stay discovery pending a finding of jurisdiction, and, in any
case, we discern no abuse of discretion in that ruling. See Wagner v.
Environmental Protection Agency , 54 M.S.P.R. 447, 452 (1992) (holding that the
Board will not reverse an administrative judge’s rulings on discovery matters
absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). The
dispositive jurisdictional issue, i.e., whether the appellant nonfrivolously alleged
that she made protected disclosures that contributed to a personnel action, is
determined based on whether the appellant alleged sufficient factual matters,
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. 2022) . Thus, the
jurisdictional issue was appropriately resolved based on the allegations contained
in the appellant’s pleadings, and further discovery would have been on the merits.
To the extent the appellant argues that the administrative judge’s ruling was
inconsistent with the Federal Rules of Civil Procedure, we note that the Rules are
instructive but not controlling in Board proceedings. See Wagner v. Department
of Homeland Security , 105 M.S.P.R. 67, ¶ 14 (2007); see 5 C.F.R. § 1201.72(a).
2 In finding that the appellant exhausted her administrative remedies before OSC, the
administrative judge stated that the appellant was required to show that she informed
OSC of the precise grounds of her claim. Spassova v. Department of Agriculture ,
MSPB Docket No. DC-1221-22-0496-W-1, Initial Decision at 4. However, to prove
exhaustion, an appellant need only show that she provided OSC with a sufficient basis
to pursue an investigation that might lead to corrective action. Chambers v. Department
of Homeland Security , 2022 MSPB 8, ¶ 10. Under the circumstances, however, we find
that the administrative judge’s error did not prejudice the appellant’s substantive rights.3
Finally, we discern no error in the administrative judge’s finding that the
appellant failed to nonfrivolously allege that the disclosures at issue in
Complaint 1, concerning the SAS software and the alleged hostile work
environment, were protected disclosures under 5 U.S.C. § 2302(b)(8). The
appellant’s mere disagreement with those findings does not warrant further
review. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding
no reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 200136
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 | Spassova_Maria_A_DC-1221-22-0496-W-1_Final_Order.pdf | 2025-02-28 | MARIA SPASSOVA v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-1221-22-0496-W-1, February 28, 2025 | DC-1221-22-0496-W-1 | NP |
69 | https://www.mspb.gov/decisions/nonprecedential/Chacon_Joy_NY-0752-19-0108-I-1_FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOY CHACON,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
NY-0752-19-0108-I-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joy Chacon , Connelly, New York, pro se.
Fernando Morales , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman 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 with prejudice her removal appeal for failure to prosecute. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Effective March 8, 2019, the appellant was removed from her position with
the agency as a GS-13 Consumer Safety Officer. Initial Appeal File (IAF), Tab 9
at 6. Her removal was based on charges of failure/refusal to follow supervisory
instructions (13 specifications), absence without leave (17 specifications), and
failure to follow established leave procedures (17 specifications). IAF, Tab 6
at 10-23.
This timely filed appeal followed, in which the appellant raised affirmative
defenses of harmful procedural error, discrimination on the basis of age, race, and
gender, and retaliation for her prior equal employment opportunity activity and
whistleblowing disclosures. IAF, Tab 1 at 6. In her acknowledgement order, the
administrative judge directed the agency to contact the appellant within
35 calendar days “to define the issues, agree to stipulations, and discuss the
possibility of settlement.” IAF, Tab 2 at 2. The appellant requested that the
administrative judge assist in that discussion. IAF, Tab 4 at 4.2
The administrative judge scheduled a conference call for April 29, 2019.
IAF, Tab 18 at 1. The appellant replied that same day, stating that she was
unavailable for the date selected by the administrative judge, but that she and the
agency counsel would be available on other dates. IAF, Tab 19 at 4. Based on
this information, on April 29, 2019, the administrative judge scheduled the status
conference for May 28, 2019. IAF, Tab 20 at 1. Among other things, the
administrative judge stated that, at the conference, “[e]ach party must be prepared
to identify a settlement authority and discuss an initial settlement position.” Id.
Also on this date, the administrative judge dismissed for lack of jurisdiction the
appellant’s individual right of action (IRA) appeal.2 Chacon v. Department of
Health and Human Services , MSPB Docket No. NY-1221-18-0167-W-2, Appeal
File (W-2 AF), Tab 28.
A few days prior to the May 28, 2019 conference, the appellant filed a
motion requesting that the administrative judge schedule a mandatory settlement
conference under the “Settlement Judge Program” and correct her prior
prejudicial errors or recuse. IAF, Tab 21 at 4-13. Much of the appellant’s filing
concerned the administrative judge’s adjudication of her IRA appeal. Id. at 5-12.
Among other things, the appellant argued for the first time that her removal
appeal should not have been a separate action and that her appeals should be
consolidated. Id. at 6-8. The appellant further alleged that the administrative
judge ignored her January 27, 2019 stay request that resulted in her removal, and
her March 21, 2019 motion for a settlement conference. Id. at 5. The appellant
stated that she “invoke[d] her right to request the activation of the MSPB’s
Settlement Judge Program for this case and decline[d] participation in the
premature scheduling of hearing and prehearing dates[] at this time and until
MSPB due process has been restored.” Id. at 13.
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
On May 28, 2019, the administrative judge issued an order and summary of
conference call. IAF, Tab 23 at 1. She noted that neither party attended the
conference as scheduled, and she advised the parties that additional failures to
comply with the Board’s orders would result in sanctions. Id. Among other
things, she ordered the parties to file their prehearing submissions by July 5,
2019, and she scheduled a telephonic prehearing conference for July 8, 2019. Id.
at 4, 6. The appellant, as an e-filer, was served with this order. Id. at 7.
The appellant thereafter filed a motion to activate the “Settlement Judge
Program.” IAF, Tab 26 at 4. On June 7, 2019, the administrative judge denied
the appellant’s request for a settlement judge, and she stated therein that
settlement would be discussed at the scheduled prehearing conference and she
would revisit the appellant’s request at that time. IAF, Tab 27 at 1.
On July 8, 2019, the administrative judge issued an order and summary of
prehearing conference. IAF, Tab 30 at 1. She noted that the appellant was not
present. Id. She also noted that the appellant failed to file a prehearing
submission. Id. For the appellant’s continued failure to comply with Board
orders, the administrative judge sanctioned her by denying her request for a
hearing. Id. Additionally, the administrative judge ordered the appellant to file a
pleading by July 15, 2019, showing good cause why her appeal should not be
dismissed for failure to prosecute. Id. The administrative judge warned that if
the appellant failed to timely respond, her appeal would be immediately
dismissed for failure to prosecute. Id. at 2. The appellant was served with this
order, id. at 4, but she did not file a response.
The administrative judge dismissed her appeal for failure to prosecute.
IAF, Tab 31, Initial Decision (ID) at 1. In doing so, the administrative judge
made the following findings: (1) the appellant was appropriately notified of her
obligation to appear for scheduled conferences and respond to orders during the
appeal; (2) despite notice, she failed to respond to multiple orders; (3) she failed
to demonstrate good cause for her failure to participate in the prosecution of the4
appeal, despite an opportunity to do so; and (4) she failed to exercise basic due
diligence in complying with the Board’s order and exhibited negligence and a
lack of attention to her Board appeal. ID at 2.
The appellant has filed a petition for review, arguing that the administrative
judge was biased and made various adjudicatory errors. Petition for Review
(PFR) File, Tab 1. She also includes the petition for review that she filed in the
IRA appeal. Id. at 7-16. The agency has filed a response opposing the petition.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice is a severe sanction, and the Board
has held that it is only appropriate when necessary to serve the ends of justice and
should only be imposed when (1) a party has failed to exercise basic due
diligence in complying with Board orders, or (2) a party has exhibited negligence
or bad faith in its efforts to comply. Davis v. Department of Commerce ,
120 M.S.P.R. 34, ¶ 18 (2013). Nevertheless, absent a showing of abuse of
discretion, the Board will not reverse an administrative judge’s determination
regarding the imposition of sanctions, including the sanction of dismissal with
prejudice. Turner v. U.S. Postal Service , 123 M.S.P.R. 640, ¶ 14 (2016), aff’d,
681 F. App’x 934 (Fed. Cir. 2017).
Here, the appellant failed to appear for a status conference, failed to file a
prehearing submission, failed to appear for a prehearing conference, and failed to
respond to an order to show cause. IAF, Tab 23 at 1, Tab 30 at 1; ID at 2.
On review, the appellant does not allege that she was unaware of the deadlines for
filing submissions or the dates and times of the conferences she was ordered to
attend. PFR File, Tab 1 at 4-16. Additionally, none of the appellant’s arguments
justify her failure or refusal to attend scheduled conferences or submit a
prehearing submission. Under the circumstances of this case, we find that the
administrative judge’s dismissal of this appeal for failure to prosecute was within5
her discretionary authority, and we affirm the initial decision dismissing the
appeal with prejudice for failure to prosecute. Leseman v. Department of the
Army, 122 M.S.P.R. 139, ¶ 7 (2015); Davis, 120 M.S.P.R. 34, ¶ 19. We therefore
need not address the appellant’s arguments regarding the propriety of her
removal.
We have considered the appellant’s remaining arguments on review, but
none warrant a different outcome. For example, the appellant asserts that the
administrative judge prevented her from prosecuting her case, and she states that
she informed the administrative judge that she “[declined] participation in the
premature scheduling of hearing and prehearing dates . . . until MSPB due
process [had] been restored.” PFR File, Tab 1 at 4, 6. She also asserts that the
administrative judge “scheduled a kangaroo prehearing conference.” Id. at 6.
She further asserts that the administrative judge was biased and engaged in
judicial misconduct. Id. at 4-6.
Some of the arguments in her petition for review in the IRA appeal, id.
at 7-16, appear to relate to this removal appeal and the administrative judge’s
decision to dismiss the appeal for failure to prosecute, and we will consider them
herein.3 For example, the appellant argues on review that the administrative
judge erred in not joining her IRA appeal and removal appeal. Id. at 9. Joinder
of two or more appeals filed by the same appellant may be appropriate when it
would expedite processing of the appeals and when it would not adversely affect
the interests of the parties. 5 C.F.R. § 1201.36(b). The appellant has not
satisfied this burden.
We have also considered the appellant’s argument that the administrative
judge failed to consider some of her submissions, including her January 27, 2019
3 Conversely, we will not address any arguments that obviously concern only her IRA
appeal. Therefore, we do not address the appellant’s argument that the administrative
judge failed to consider her February 21, 2019 submission in the IRA appeal or that the
administrative judge erred in addressing her disciplinary records from 2012-2014 in the
initial decision in that matter. PFR File, Tab 1 at 11.6
stay request and her March 21, 2019 and May 24, 2019 motions to schedule a
settlement conference. PFR File, Tab 1 at 10-11. There is no January 27, 2019
filing in this matter, and we are not aware of any separately docketed stay appeal
during this time frame. The appellant included below a copy of the stay request
that it appears she filed in the IRA appeal.4 IAF, Tab 21 at 14-15, 21. However,
because the stay request was made in the IRA appeal, we will not address it here.
Although the administrative judge did not immediately respond to the appellant’s
March 21, 2019 and May 24, 2019 motions regarding settlement, she scheduled
several conference calls. E.g., IAF, Tabs 18, 20. On June 7, 2019, the
administrative judge denied the appellant’s June 6, 2019 motion for a settlement
judge, noting that settlement would be discussed at the scheduled prehearing
conference. IAF, Tab 27 at 1. Notably, the appellant did not attend the
prehearing conference. IAF, Tab 30 at 1.
Finally, the appellant argues that the administrative judge was biased.
Id. at 5. In particular, the appellant attributes the administrative judge’s alleged
adjudicatory errors to “inexplicable negligence or blatant bias.” Id. at 16.
The appellant also asserts that the administrative judge “demonstrated blatant
bias” by, among other unspecified acts, stating during an August 2018 status
conference (in the IRA appeal) that she “didn’t like this case.” Id. at 5.
These arguments are not persuasive. 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.
4 It appears that her stay request can be found at W-2 AF, Tab 1 at 4, 11-13.7
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555, (1994)). The
administrative judge’s adjudicatory findings, even if erroneous, are insufficient in
themselves to establish bias. Myers v. Department of Agriculture , 81 M.S.P.R.
496, ¶ 29 (1999). Although we do not address the appellant’s argument regarding
the administrative judge’s alleged statements in the IRA appeal, we note that,
even if true, an administrative judge’s remarks that are “critical or disapproving
of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support” a bias claim. Liteky, 510 U.S. at 555. The appellant has failed to
establish that the administrative judge’s comments or actions in this matter
evidence “a deep -seated favoritism or antagonism that would make fair judgment
impossible.” Bieber, 287 F.3d at 1362-63.
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
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001310
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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:
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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Chacon_Joy_NY-0752-19-0108-I-1_FInal_Order.pdf | 2025-02-28 | JOY CHACON v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. NY-0752-19-0108-I-1, February 28, 2025 | NY-0752-19-0108-I-1 | NP |
70 | https://www.mspb.gov/decisions/nonprecedential/Chacon_Joy_NY-1221-18-0167-W-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOY CHACON,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
NY-1221-18-0167-W-2
DATE: February 28, 2025
THIS ORDER IS NONPRECEDENTIAL1
Joy Chacon , Connelly, New York, pro se.
Fernando Morales , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
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 appeal to the Northeastern
Regional Office for adjudication of the merits in accordance with this Remand
Order.
BACKGROUND
The appellant was a Quality Program Specialist for the agency’s Office of
Communications and Quality Program Management, a subdivision of the Office
of Regulatory Affairs (ORA), which is itself a subdivision of the Food and Drug
Administration. Chacon v. Department of Health and Human Services , MSPB
Docket No. NY-1221-18-0167-W-2 (W-2 appeal), Appeal File (W-2 AF), Tab 17
at 4-5. In August 2014, the appellant was working in ORA’s Northeast Regional
Laboratory (NRL). W-2 AF, Tab 8 at 29-31. Her duties during this time included
working to ensure that NRL was in compliance with the Quality Management
System and serving as a liaison for bi -yearly audits by the American Association
for Laboratory Accreditation (A2LA). Chacon v. Department of Health and
Human Services , MSPB Docket No. NY-1221-14-0372-W-1, Final Order, ¶ 2
(Jan. 4, 2017).
On August 22, 2014, the appellant “sent in confidence” to A2LA an email
regarding NRL management’s “obstructive activities,” including orders to “sign[]
without review,” “falsif[y],” or “close numerous noncomformance and complaint
reports” so that such reports would not be “‘visible’ to [A2LA] in NRL’s
upcoming assessment,” and describing punitive personnel actions taken against
staff who have “protested against or refused to comply with unlawful orders to
‘cover-up’ issues that may be perceived adversely.” W-2 AF, Tab 8 at 29-30.
The appellant’s email further stated that she was personally “ordered to ‘close’
and/or ‘withdraw’ noncomformances or complaints for which
corrective/preventive actions have not been completed.” Id. at 30. She included
specific examples. Id. In its reply, A2LA stated that it was “very concerned” by2
the issues that she raised and assured her that it would keep her “identity as the
source of this complaint confidential.” Id. at 29.
Subsequently, A2LA representatives visited NRL to investigate a complaint
that was brought to its attention, presumably the appellant’s email. Id. at 33.
A2LA ultimately suspended NRL’s laboratory accreditation in September 2014
after its investigation revealed noncompliance with its requirements. Id. at 33-35.
Even though NRL regained its accreditation in May 2015, the appellant was
allegedly subjected to numerous acts of reprisal over the next several years
following the disclosure. Chacon v. Department of Health and Human Services ,
MSPB Docket No. NY-1221-18-0167-W-1, Initial Appeal File (IAF), Tab 6
at 9-10, 13-50.
On March 8, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency retaliated against her because of,
among other things, her disclosure to A2LA (OSC Docket No. MA-18-2621). Id.
at 6-12. She supplemented her OSC complaint numerous times with additional
acts of retaliation that she allegedly suffered. Id. at 13-50. In a July 18, 2018
email, OSC advised the appellant that, because she previously indicated that she
“intended to exercise [her] right to file an [IRA] appeal with the MSPB,” there
was “no basis for [its] inquiry into the[] matters” that she raised, and it closed its
inquiry into her complaint. IAF, Tab 4 at 13-14.
This appeal followed. IAF, Tab 1. The appellant requested a hearing. Id.
at 2. During the pendency of this appeal, the appellant filed another OSC
complaint in which she indicated that she was refiling her prior OSC complaint
and submitting additional allegations (OSC Docket No. MA-18-5547). W-2 AF,
Tab 4 at 9-18. Among other things, the appellant noted in her correspondence
with OSC that she had received a notice of proposed removal. W-2 AF, Tab 9
at 7, Tab 18 at 4-12. The administrative judge dismissed the appeal without
prejudice to provide the appellant the opportunity to exhaust her claims before
OSC. IAF, Tab 17 at 2-4. The appeal was refiled on January 28, 2019. W-2 AF,3
Tab 1. OSC issued a closeout letter for the appellant’s second complaint on
February 7, 2019. W -2 AF, Tab 9 at 7-8. The appellant was ultimately removed
from her position, effective March 8, 2019, and a separate appeal was docketed
regarding her removal. W-2 AF, Tab 18 at 13-17; Chacon v. Department of
Health and Human Services , MSPB Docket No. NY-0752-19-0108-I-1, Initial
Appeal File (0108 IAF), Tab 1.
On April 29, 2019, the administrative judge issued an initial decision
dismissing the refiled IRA appeal for lack of jurisdiction. W-2 AF, Tab 28,
Initial Decision (ID). The administrative judge found that the appellant
exhausted with OSC her August 22, 2014 A2LA disclosure and approximately
102 alleged reprisal actions, ID at 4, and that she nonfrivolously alleged that her
A2LA disclosure was protected, ID at 7. The administrative judge found that the
appellant failed to nonfrivolously allege that her disclosure was a contributing
factor in any reprisal actions. ID at 7-10. The administrative judge further found
that the appellant failed to nonfrivolously allege that 79 of the 102 reprisal
actions constituted appealable personnel actions.2 ID at 11-12. She also found
that the appellant failed to nonfrivolously allege that she was subjected to a
2 The appellant does not challenge the administrative judge’s finding that she failed to
nonfrivolously allege that these 79 actions constituted personnel actions under 5 U.S.C.
§ 2302(a)(2)(A). ID at 11-12. The Board generally does not consider issues that are not
raised on review. Roche v. Department of Transportation , 110 M.S.P.R. 286, ¶ 13
(2008), aff’d, 596 F.3d 1375 (Fed. Cir. 2010). Although not explicitly raised by the
appellant on review, however, we modify the initial decision to find that the agency’s
decision to propose the appellant’s removal on February 4, 2019 (personnel action 101)
is a nonfrivolous allegation of a personnel action. Chambers v. Department of the
Interior, 116 M.S.P.R. 17, ¶ 5 (2011); W-2 AF, Tab 18 at 4-12. Thus, the only
purported personnel actions that remain are numbered 1-2, 4-5, 33, 39, 63, 72, 77, 82,
85-95, 98, and 100-01. In addition to the proposed removal, these personnel actions
concern the appellant’s exclusion from or lack of work assignments, denial of credit or
awards for her accomplishments, lowered performance evaluations for calendar years
2015 and 2016, derogatory treatment directed to her, a letter of reprimand, a letter of
action (leave restriction), charges of absence without leave, denial of sick leave, a
downgrade of her position description and duties, and the termination of her telework
agreement. IAF, Tab 14 at 5-68; W-2 AF, Tab 4 at 2-5, 18, Tab 8 at 5-22. We will
discuss the personnel actions below in our analysis of contributing factor.4
hostile work environment. ID at 12-13. The administrative judge noted that,
although the appellant listed her removal as among the incidents of reprisal at
issue, that action was the subject of another appeal and would not be adjudicated
in the instant IRA appeal.3 ID at 3; see 0108 IAF, Tab 31 (dismissing the
removal appeal for failure to prosecute).
The appellant has filed a petition for review, arguing that (1) she
nonfrivolously alleged that her 2014 A2LA disclosure was a contributing factor in
the personnel actions to which she was subjected, (2) the administrative judge
failed to address her other alleged whistleblowing disclosures and protected
activities, (3) the administrative judge should have joined her IRA appeal and
removal appeal and found her removal to be improper, (4) the administrative
judge failed to consider her submissions, including her motions and stay request,
(5) the administrative judge improperly referenced her disciplinary record from
2012 to 2014, and (6) the administrative judge was biased. Petition for Review
(PFR) File, Tab 1. The agency has filed a response opposing the petition. PFR
File, Tab 3. For the following reasons, we find that the Board has jurisdiction
over the appeal, and we remand the appellant’s allegations to the administrative
judge for further adjudication in accordance with this order.
DISCUSSION OF ARGUMENTS ON REVIEW
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 whistleblowing disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
3 We find that the appellant is precluded from raising her removal in this IRA appeal
because she elected to appeal it directly to the Board under the procedures of 5 U.S.C.
chapter 75. See 5 U.S.C. § 7121(g). Although the appellant raised the proposed
removal in one of her whistleblower complaints, OSC closed that complaint before the
removal decision was issued. W-2 AF, Tab 9 at 7. Twenty-three days after the removal
decision was issued, the appellant filed her chapter 75 appeal. 0108 IAF, Tab 1. There
is no indication that she raised the matter with OSC in the interim.5
§ 2302(b)(9)(A)(i), (B), (C), or (D) , and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a) . Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1) ;
Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001) .
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. If the appellant proves
by preponderant evidence that her whistleblowing disclosure or protected activity
was a contributing factor in a personnel action taken against her, the agency is
given an opportunity to prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the whistleblowing
disclosure or protected activity. Id.; see 5 U.S.C. § 1221(e)(1)-(2) .
We find that the appellant established the Board’s jurisdiction over this IRA
appeal because she made nonfrivolous allegations that her August 22, 2014 A2LA
disclosure was a contributing factor in personnel actions 1-2, 5, and 85.
As previously indicated, the administrative judge found that the appellant
exhausted the A2LA disclosure with OSC and nonfrivolously alleged that it was
protected as a violation of agency rules. ID at 4, 7. Neither party challenges
these findings, and we see no reason to disturb them. Accordingly, to establish
the Board’s jurisdiction over this appeal, the appellant need only nonfrivolously
allege that this disclosure was a contributing factor in a personnel action taken
against her.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect the personnel action
in any way. Salerno, 123 M.S.P.R. 230, ¶ 13 . One way to establish this criterion
is the knowledge/timing test, under which an employee may nonfrivolously allege
that the disclosure was a contributing factor in a personnel action through6
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action.4 Id.; see 5 U.S.C. § 1221(e)(1).
A personnel action that occurs within 2 years of an appellant’s disclosure
satisfies the timing prong of the knowledge/timing test. Scoggins v. Department
of the Army, 123 M.S.P.R. 592, ¶ 25 (2016). The administrative judge noted in
the initial decision that only eight reprisal actions occurred within 2 years of the
A2LA disclosure, and of those, only actions 1-2, 5, and 85 constituted personnel
actions. ID at 8-9, 11-12. The appellant did not challenge either of these
findings on review. Therefore, concerning the A2LA disclosure, we will only
consider personnel actions 1-2, 5, and 85 in our analysis of contributing factor.
Personnel action 5 concerned the appellant’s lowered calendar year (CY)
2015 evaluation. IAF, Tab 6 at 18, Tab 14 at 9; W-2 AF, Tab 21 at 4-16.
Although we cannot tell when the appellant’s CY 2015 performance evaluation
was issued, it appears that she electronically signed the evaluation on
February 18, 2016. W-2 AF, Tab 21 at 4. This time frame falls within 2 years of
the appellant’s August 2014 disclosure to A2LA, and we find that the appellant
has made a nonfrivolous allegation that the timing component of the
knowledge/timing test is satisfied. Scoggins, 123 M.S.P.R. 592, ¶ 25. We
similarly find that appellant made a nonfrivolous allegation that personnel actions
4 As an alternative to the knowledge/timing test, the Board may consider evidence such
as that pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the proposing
or deciding officials, and whether those individuals had a desire or motive to retaliate
against the appellant. Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 26 (2013);
IAF, Tab 3 at 4. However, because we have found that the appellant made a
nonfrivolous allegation of contributing factor under the knowledge/timing test, we need
not consider whether she satisfied the alternative method to establish contributing
factor. 7
1, 2, and 85 occurred within 2 years of her August 22, 2014 A2LA disclosure.5
IAF, Tab 6 at 14-16; W-2 AF, Tab 1 at 6.
We now analyze the knowledge component concerning personnel actions 1,
2, 5, and 85. If the appellant nonfrivolously alleged that any of the
decisionmakers involved with these personnel actions had either actual or
constructive knowledge of her August 22, 2014 disclosure, then she has satisfied
her burden at this stage.6 See Usharauli v. Department of Health and Human
Services, 116 M.S.P.R. 383, ¶ 19 (2011) (finding that the Board has jurisdiction
when an appellant exhausts his administrative remedies before OSC and makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one whistleblowing disclosure).
Under penalty of perjury, the appellant asserted below that G.H., L.D.,
L.L., and D.R. “knew that A2LA conducted a for-cause audit in 2014 for the
purpose of investigating a complaint . . . that could only have come from
1 source.” IAF, Tab 14 at 5. The appellant added that M.P. and L.D. “were both
directly involved in leading NRL’s reaccreditation activities, [and] were directly
privy to her identity as whistleblower as a result of subsequent information
derived from A2LA representatives and/or the extensive internal investigation
conducted.” Id. She further asserted that G.H., L.L., and D.R., who “all
participated directly in NRL’s reaccreditation activities,” “were informed by
involved executive managers of (or inferred) [her] identity as a whistleblower.”
5 Some of the appellant’s personnel actions involve events that occurred over a period
of time, such as, in personnel action 1, exclusion from work assignments from February
2016 to February 23, 2017, and no work assignments in February and March 2017.
IAF, Tab 14 at 5. Similarly, in personnel action 85, the appellant alleged that, after her
October 2015 reassignment “and through the present,” management downgraded her
position description, title, and organizational roles. W-2 AF, Tab 8 at 8. To the extent
that these events occurred outside the 2-year knowledge/timing window, they
nevertheless represent a continuum of related actions for purposes of contributing
factor. See Agoranos v. Department of Justice , 119 M.S.P.R. 648, ¶ 22 (2013).
6 The appellant did not allege any claim involving constructive knowledge of the
disclosure.8
Id. at 5-6. Additionally, the appellant asserted that she “received feedback” that
her “known or presumed identity as [a] whistleblower” was “widely
disseminated.”7 Id. at 6. As further support for this contention, the appellant
states on review that some ORA officials knew her to be the source of the
disclosure to A2LA based on her history of raising similar objections within the
agency, the specific issues and staff investigated, and her direct communication
with accreditation organization representatives.8 PFR File, Tab 1 at 10; W-2 AF,
Tab 19 at 5-10.
The appellant stated under penalty of perjury that one or more of these
named individuals took or was notified of personnel actions 1-2, 5, and 85. IAF,
Tab 14 at 5-9; W-2 AF, Tab 8 at 8. The knowledge issue presents a close call.
However, at this stage, the appellant’s burden to make nonfrivolous allegations
does not require precision. See, e.g., Cahill v. Merit Systems Protection Board ,
821 F.3d 1370, 1374 (Fed. Cir. 2016) (holding that, although the appellant did not
identify which management officials or other attendees were present at the
meeting in which he made the whistleblowing disclosure, “when read with an eye
on likely inferences appropriate to the context, [his] allegations are sufficiently
specific and plausible to constitute nonfrivolous assertions that at least one, and
perhaps three, of the officials charged with the personnel actions at issue attended
the [] meeting or at least knew what [the appellant] disclosed there”); Jessup v.
Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10 (2007) (finding that the
7 The appellant did not allege a claim of reprisal for perceived whistleblowing
disclosures.
8 In finding that the appellant failed to nonfrivolously allege that any decisionmaker had
knowledge of her disclosure to A2LA, the administrative judge noted that she asked
A2LA not to be named and her work email not to be used. ID at 10. However, the
reasons A2LA gave for suspending NRL’s accreditation could have had the effect of
outing the appellant as the whistleblower if only she could have provided it with those
reasons. See, e.g., Schnell v. Department of the Army , 114 M.S.P.R. 83, ¶ 22 (2010)
(acknowledging the administrative judge’s finding that, even if a disclosure was made
anonymously, the nature of the disclosure may make it evident that the disclosure could
only have come from the appellant).9
appellant made a nonfrivolous allegation of knowledge under the
knowledge/timing test because he alleged that the Chief of Staff used his
influence within the agency to cause the Office of General Counsel to take the
personnel actions against him, which the Board construed as an allegation that the
agency decisionmakers either knew of the disclosure via the Chief of Staff or
were influenced by him). Moreover, any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of finding jurisdiction. Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 6 (2016). Accordingly, we find that the appellant made a
nonfrivolous allegation that one or more individuals who took or influenced
personnel actions 1-2, 5, and 85 knew of her A2LA disclosure. Thus, we find that
the appellant has nonfrivolously alleged that her disclosure to A2LA was a
contributing factor in personnel actions 1-2, 5, and 85. She has therefore
established that the Board has jurisdiction over these claims.
We further find that the Board has jurisdiction over some of the appellant’s
remaining allegations of reprisal for whistleblowing disclosures.
In addition to the August 22, 2014 A2LA disclosure discussed above, the
appellant identified numerous other disclosures and activity below.9 W-2 AF,
Tab 1 at 9-11, Tab 8 at 24-26, Tab 11 at 4-5, Tab 12 at 5-6. The administrative
judge did not address any of these other disclosures or activity in the initial
9 There are discrepancies in how the appellant identified and categorized her
disclosures. Compare W-2 AF, Tab 1 at 9-11, with W-2 AF, Tab 8 at 24-26. There also
appears to be some overlap between the disclosures. For the purposes of our analysis,
we have included the broadest reading of her disclosures. For uniformity in this order,
we have numbered the appellant’s disclosures as follows: disclosure 1 is the A2LA
email, W-2 AF, Tab 1 at 9 (identified as disclosure (a) therein); disclosures 2-18 are
found in W-2 AF, Tab 1 at 9-11 (labeled by the appellant as disclosures (b)-(r) therein);
disclosure 19 is the refiled W-2 appeal, W-2 AF, Tab 8 at 26 (which the appellant listed
as disclosure 7 therein); disclosure 20 comprises the appellant’s equal employment
opportunity complaints, W-2 AF, Tab 11 at 4-5 (which the appellant listed as
disclosure 8 therein); and disclosure 21 is her February 25, 2019 email found at W-2
AF, Tab 12 at 5-6 (which the appellant listed as disclosure 9 therein).10
decision, and the appellant raises this claim of error on review. We agree with
the appellant, and we now address her other disclosures and activity.
Administrative exhaustion
The Board has jurisdiction over an IRA appeal if, inter alia, an appellant
exhausts her administrative remedies before OSC. Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016) . The substantive requirements
of exhaustion are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited to those issues that
previously have been 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. 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., ¶ 11.
To evaluate exhaustion, we have reviewed the appellant’s two OSC
complaints in MA-18-2621 and MA-18-5547, her supplements thereto, and the
two OSC close-out letters. E.g., IAF, Tab 4 at 13-14, Tab 6; W-2 AF, Tab 4
at 9-18, Tab 9 at 7-8. Based upon our review of these documents, we find that
she exhausted with OSC the disclosures numbered 2-6, 11-18, and 20.
Conversely, we find that she did not exhaust with OSC disclosures 7-10,
19, 21, and portions of disclosure 4. For example, we find that the appellant
failed to exhaust with OSC such activity as her two OSC complaints (OSC Docket
Nos. MA-18-2621 and MA-18-5547) and the instant Board appeals (disclosures 7,
9, 10, 19). We also find that her February 12, 2019, and February 19, 2019
disclosures (part of disclosure 4) and her February 25, 2019 disclosure (disclosure11
21), were dated after OSC issued its second, February 7, 2019 close-out letter and
could not have been exhausted with OSC. Additionally, the appellant asserted
that she made numerous disclosures to G.H. himself from May to December 2018
(disclosure 8); however, none of her correspondence to OSC or OSC’s responses
to her during and after this time frame included such an allegation.
Whistleblowing disclosures/protected activity
Having determined that the appellant proved OSC exhaustion with regard
to disclosures 2-6, 11-18, and 20, we must next consider whether the appellant
has nonfrivolously alleged that she made whistleblowing disclosures in these
communications. Salerno, 123 M.S.P.R. 230, ¶ 5. A nonfrivolous allegation of a
whistleblowing disclosure is an allegation of fact that, if proven, would show that
the appellant disclosed a matter that a reasonable person in her position would
believe evidenced one of the categories of wrongdoing specified in 5 U.S.C.
§ 2302(b)(8). Id., ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced any violation of law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety. Id.
We find that the appellant has made nonfrivolous allegations that some of
her disclosures were protected. For example, the appellant’s September 6, 2016
email to L.D. (part of disclosure 2) stated, among other things, that she was not
being given assignments in part due to her prior “MSPB complaints,” W-2 AF,
Tab 1 at 9, Tab 8 at 36. We find that this email constitutes a nonfrivolous
allegation of a violation of law. Also, the appellant’s October 30, 2018 email to
M.P. and E.M. (part of disclosure 4), titled “Confidential Whistleblowing
Notification,” stated, among other things, that G.H. approved audit module
software scope contracts but “omit[ed] the requirement that [the vendor] fix all of12
the critical and major issues identified in last year’s failed audit module
deployment project.” W-2 AF, Tab 8 at 49. We find that the appellant
nonfrivolously alleged that she disclosed an abuse of authority in this email. See,
e.g., Pasley v. Department of the Treasury , 109 M.S.P.R. 105, ¶ 18 (2008) (noting
that an abuse of authority occurs when there is an arbitrary or capricious exercise
of power by a Federal official or employee that adversely affects the rights of any
person or results in personal gain or advantage to herself or preferred other
persons). Similarly, the appellant’s November 27, 2018 email to M.P. and E.M.,
among others (identified in disclosure 4), stated that “as a result of [her]
whistleblowing and [equal employment opportunity (EEO)] complaint
notifications” to them over the past few years and the agency’s failure to take any
corrective action, “management’s hostile retaliation has escalated further both
inside and outside of the workplace.” W-2 AF, Tab 1 at 9, Tab 8 at 50. She
asserted that G.H. and others improperly denied sick leave requests and
“maliciously sabotaged” her car, which resulted in “catastrophic damage.” W-2
AF, Tab 8 at 50. We find that the appellant made a nonfrivolous allegation that
this disclosure involved an abuse of authority and a violation of law (destruction
of property). See, e.g., DiGiorgio v. Department of the Navy , 84 M.S.P.R. 6, ¶ 14
(1999) (explaining that some allegations of wrongdoing, such as theft of
Government property or fraudulent claims for pay, so obviously implicate a
violation of law, rule, or regulation that an appellant need not identify any
specific law, rule, or regulation that was violated) .
The appellant also made a number of other disclosures involving
allegations of unlawful instructions, improper denial of sick leave, and
“fraudulent” absence without leave (AWOL) charges, which we find are
nonfrivolous allegations of a violation of law, rule, or regulation, or an abuse of
authority. For example, in her December 17, 2018 email to E.M., M.P., L.L., and
others (referenced in disclosures 4 and 17), the appellant stated her belief that the
termination of her telework agreement and instruction to report to a duty station13
100 miles away were unlawful, and the AWOL charges against her were
“fraudulent.” W-2 AF, Tab 1 at 11, Tab 8 at 26, 66. Although she did not
identify where in the record we could find the November 21, 2018 email to L.L.,
E.M., and M.P. (disclosure 13), W-2 AF, Tab 1 at 10, we believe that she was
describing the email at W-2 AF, Tab 8 at 55, which included similar allegations.10
We further find that two of the emails identified in disclosure 3 were
communications to the agency’s Office of Equal Employment Opportunity, dated
December 1, 2018, and January 28, 2019, and that she has made a nonfrivolous
allegation that these are protected under 5 U.S.C. § 2302(b)(9)(C). See Holman v.
Department of the Army , 2025 MSPB 2, ¶ 13; W-2 AF, Tab 8 at 25-26, 57, 70-71.
The remainder of the emails identified in disclosure 3 pertained to other incidents
of alleged discrimination and retaliation for EEO activity. W-2 AF, Tab 8 at 38,
43-45, 57, 70-74. Such allegations, which were not directed to the Office of
Equal Employment Opportunity or any other entity responsible for internal
investigation or review, do not constitute nonfrivolous allegations of
whistleblowing disclosures. See, e.g., Edwards v. Department of Labor ,
2022 MSPB 9, ¶¶ 18-23 (finding that disclosures of alleged Title VII violations
are not protected under 5 U.S.C. § 2302(b)(8)).
As for the appellant’s remaining disclosures, we find that some of her
descriptions of the disclosures are too vague to find protected even under the
nonfrivolous allegation standard. See, e.g., Salerno, 123 M.S.P.R. 230, ¶ 6
(finding that, in order to be protected, the appellant’s disclosures must be specific
and detailed, not vague allegations of wrongdoing). For example, in disclosure 3,
she stated that from June to October 2017, she made “whistleblowing disclosures”
10 The appellant alleged in disclosure 17 that she made similar disclosures to other
managers in a December 10, 2018 email. W-2 AF, Tab 1 at 11. However, she did not
reference this email at W-2 AF, Tab 8 at 25-26, and she did not identify the location of
this communication in the record or explain to whom the disclosure was made. Because
the content of this disclosure appears duplicative of the disclosures of wrongdoing in
the November 21, 2018, and December 17, 2018 emails, which we find protected
herein, we do not address the December 10, 2018 email further. 14
to E.A., and in disclosure 5, she stated that from January to March 2018, she
made “whistleblowing disclosures” to B.C., W-2 AF, Tab 1 at 9, but she did not
offer any explanation of the nature of the disclosures or include any citations to
where these communications could be found in the record. Also, in disclosure 12,
the appellant stated that on November 14, 2018, she disclosed “that [an EEO]
representative refused to receive ongoing claims and initiate a new complaint.”
Id. at 10. She does not, however, identify to whom the disclosure was made or
the category of disclosure under 5 U.S.C. § 2302(b)(8), nor does she offer a
citation for where this communication can be found in the record. The Board is
not required to pore through the record in order to construe or make sense of
pleadings filed by a party . Keefer v. Department of Agriculture , 92 M.S.P.R. 476,
¶ 18 n.2 (2002 ). For these reasons, we find that the appellant has not made
nonfrivolous allegations that these disclosures were protected. See, e.g.,
Luecht v. Department of the Navy , 87 M.S.P.R. 297, ¶ 8 (2000) (stating that an
appellant’s submissions that lack clarity run the risk of being found to have failed
to meet the requisite burden of proof).
Finally, we have considered the appellant’s description of the remaining
disclosures, but we find that she has failed to make a nonfrivolous allegation that
any of them constitute whistleblowing disclosures. For instance, the March 30,
2017 email described in disclosure 2 “[brought] to [L.D.’s] attention the
continued lack of work assignments by management” during that month. W-2
AF, Tab 1 at 9, Tab 8 at 37. Additionally, an August 28, 2018 email alluded to in
disclosure 4 advised M.P. and E.M. that “further events of
discrimination/reprisal, which were previously reported to your attention without
corrective, preventive effect, have been reported to OSC.” W-2 AF, Tab 1 at 9,
Tab 8 at 25, 48. In her December 4, 2018 email described in disclosures 4 and
15, the appellant carbon copied E.M., M.P., and G.H. on an email to her
then supervisor, L.L., asking why her telework agreement was terminated and
explaining that she could not report to the office because she lives too far away15
from the facility. W-2 AF, Tab 1 at 9-10, Tab 8 at 25, 58-59. Her December 5,
2018 email to E.M., M.P., G.H., and “[EEO] management,” identified in
disclosures 4 and 16, “advise[d]” these officials that she requested to rescind the
“fraudulent and retaliatory supervisory action,” i.e., the termination of her
telework agreement. W-2 AF, Tab 1 at 9-10, Tab 8 at 25-26, 60-65.
Disclosure 14 requires additional discussion but ultimately does not
warrant a different outcome. There, the appellant alleged that, on November 27,
2018, and December 1, 2018, she disclosed that “management is proposing hiring
additional unit positions while denying qualified staff [(herself)] work for
[approximately] 75% of [the] time for the past year (plus) and ongoing.”11 W-2
AF, Tab 1 at 10, Tab 8 at 25-26. Even if we considered the appellant’s
substantive allegations, we would find that she did not make a nonfrivolous
allegation that she disclosed any of the categories described in 5 U.S.C.
§ 2302(b)(8). For example, her disclosure does not appear to implicate a specific
and substantial danger to public safety, nor does it constitute a reasonable belief
of a gross waste of funds or gross mismanagement. See, e.g., Van Ee v.
Environmental Protection Agency , 64 M.S.P.R. 693, 698 (1994) (finding that a
gross waste of funds constitutes a more than debatable expenditure that is
significantly out of proportion to the benefit reasonably expected to accrue to the
Government); White v. Department of the Air Force , 63 M.S.P.R. 90, 95 (1994)
(holding that gross mismanagement means a management action or inaction
which creates a substantial risk of significant adverse impact upon the agency’s
ability to accomplish its mission) . We have considered whether her disclosure
concerns a violation of law, rule, or regulation or an abuse of authority. In the
11 The appellant does not identify to whom these disclosures were made or where in the
record these disclosures can be found. We have reviewed the December 1, 2018 email
discussed above, W-2 AF, Tab 8 at 57, which describes the same content, but it would
not be protected because she was making the disclosure to add more claims to her EEO
complaint, which does not involve reprisal for whistleblowing. We have considered the
appellant’s November 27, 2018 email discussed above, W-2 AF, Tab 8 at 50, but this
email does not raise these issues. 16
absence of any contextual information, such as whether the agency’s proposed
hiring decisions would not be based on merit, her bare assertion regarding the
agency’s proposal does not support a nonfrivolous allegation of a reasonable
belief of a violation of law, rule, or regulation or an abuse of authority. Cf.
Schaeffer v. Department of the Navy , 86 M.S.P.R. 606, ¶¶ 9-10 (2000) (noting
that the appellant made a nonfrivolous allegation that he disclosed a violation of
law and an abuse of authority regarding personnel selections being made without
regard to merit), overruled on other grounds by Covarrubias v. Social Security
Administration, 113 M.S.P.R. 583 (2010), overruled on other grounds by
Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677 (2014).
Contributing factor
Having determined that the appellant made a nonfrivolous allegation of
whistleblowing disclosures in her September 6, 2016, October 30, 2018,
November 21, 2018, November 27, 2018, and December 17, 2018
communications, we must now determine whether she made a nonfrivolous
allegation that one or more of these communications was a contributing factor in
the agency’s decision to take one or more of the remaining personnel actions
against her.
The appellant’s September 6, 2016 disclosure was made to L.D., W-2 AF,
Tab 8 at 36, and she asserted below that L.D. was notified of or took personnel
actions 1-2 and 4-5, IAF, Tab 14 at 5-9. We find that the appellant has
nonfrivolously alleged that her September 6, 2016 disclosure was a contributing
factor in personnel actions 1-2 and 4-5.
Personnel actions 1-2, 4-5, 33, 39, 72, 77, 82, 86, and 88 occurred before
the October 30, 2018 disclosure, and thus, the October 30, 2018, November 21,
2018, November 27, 2018, and December 17, 2018 disclosures could not have
been contributing factors in these personnel actions. IAF, Tab 14 at 5-9, 32-33,
37-38, 57-58, 64-65, 68; W-2 AF, Tab 8 at 5-6, 8-16, 18-21; see, e.g., Mason v.
Department of Homeland Security , 116 M.S.P.R. 135, ¶ 29 (2011) (noting that,17
because the alleged personnel actions predated the taxi fare disclosure, the
appellant failed to nonfrivolously allege that the taxi fare disclosure contributed
to them). Therefore, we will no longer consider personnel actions 1-2, 4-5, 33,
39, 72, 77, 82, 86, and 88 in our analysis of contributing factor.12
The appellant’s October 30, 2018 disclosure was made to M.P. and E.M.
W-2 AF, Tab 8 at 49. The appellant asserted below that one or both of these
individuals took or were notified about personnel actions 63, 85, 87, 89-95, 98,
and 100-01. E.g., IAF, Tab 14 at 57-58; W-2 AF, Tab 8 at 8-15, 18-22. We
therefore find that she made a nonfrivolous allegation that this disclosure was a
contributing factor in these personnel actions that occurred within 2 years of this
disclosure.
The appellant’s November 21, 2018 disclosure, which was made to L.L.,
E.M., M.P., and G.B., W-2 AF, Tab 8 at 55, postdated personnel actions 93 and
94, and could not have been a contributing factor in these personnel actions. The
appellant alleged that one or more of these individuals took or were notified
about personnel actions 63, 85, 87, 89-92, 95, 98, 100-01. IAF, Tab 14 at 57-58;
W-2 AF, Tab 8 at 8-13, 15-16, 18-22, Tab 18 at 4. We therefore find that she
made a nonfrivolous allegation that her November 21, 2018 disclosure was a
contributing factor in the agency’s decision to take these personnel actions, which
occurred within 2 years of this disclosure.
Similarly, the appellant’s November 27, 2018 disclosure, which was sent to
M.P., E.M., and C.M., W-2 AF, Tab 8 at 50, postdated personnel actions 93-95
and could not have been a contributing factor in those actions. The appellant
alleged that one or more of these individuals took or were notified about
personnel actions 63, 85, 87, 89-92, 98, 100, and 101. IAF, Tab 14 at 57-58; W-2
AF, Tab 8 at 8-13, 18-20. We therefore find that she made a nonfrivolous
12 We recognize that portions of personnel actions 63, 85, 87, and 89-92 occurred before
October 30, 2018. E.g., IAF, Tab 14 at 57-58; W-2 AF, Tab 8 at 8-9, 11-13. In our
analysis, we will only focus on the portions of these personnel actions that occurred
after the corresponding disclosures.18
allegation that this disclosure was a contributing factor in the agency’s decision
to take personnel actions 63, 85, 87, 89-92, 98-100, and 101, which occurred
within 2 years of the disclosure.
As far as the EEO activity described in disclosure 3 is concerned, the
appellant’s December 1, 2018 email was copied to C.M., E.M., and M.P. W-2
AF, Tab 8 at 57. The actions that postdated that email and which the appellant
alleges that one or more of these officials influenced are personnel actions 98,
100, and 101. Id. at 18-21. The only personnel action postdating the appellant’s
January 28, 2019 email (with copies to C.M. and S.G.) was personnel action 101.
Id. at 21-22, 70-71. We find that the appellant has made a nonfrivolous
allegation of contributing factor in this regard.
Finally, her December 17, 2018 email, which was sent to E.M., M.P., G.B.,
L.L., and G.H., W-2 AF, Tab 8 at 66, predated personnel actions 93-95 and 98.
She alleged that one or more of these individuals took or were notified about
personnel actions 63, 85, 87, 89-92, 100-01. IAF, Tab 14 at 57-58; W-2 AF,
Tab 8 at 8-13, 18-22, Tab 18 at 4. We find that she made a nonfrivolous
allegation that this disclosure was a contributing factor in personnel actions 63,
85, 87, 89-92, 100-01, which occurred within 2 years of the disclosure.
Because we find that the appellant has satisfied her burden to make
nonfrivolous allegations that the aforementioned disclosures were contributing
factors in the enumerated personnel actions,13 on remand, the administrative judge
shall hold the requested hearing and shall adjudicate whether the appellant
satisfied her burden of proving these assertions by preponderant evidence. If so,
then the administrative judge shall evaluate whether the agency has proven by
clear and convincing evidence that it would have taken the same personnel
actions in the absence of the whistleblowing disclosures.
13 Regarding any remaining personnel actions not specifically addressed in this section,
we have considered the alternative method of proving contributing factor, supra note 4,
but we find that the appellant has not met her burden to make nonfrivolous allegations
of contributing factor under this alternative method. 19
Additionally, we vacate the administrative judge’s finding in the initial
decision that the appellant’s allegations individually or collectively did not rise to
the level of actionable harassment or a hostile work environment. ID at 12-13.
In Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶¶ 15-16, the
Board analyzed the personnel action found at 5 U.S.C. § 2302(a)(2)(A)(xii), a
“significant change in duties, responsibilities, or working conditions,” and it held
that to amount to a “significant change,” an agency action must have a significant
impact on the overall nature or quality of an employee’s working conditions,
responsibilities, or duties. The Board also emphasized in Skarada that it must
consider such actions with a broad interpretation. Id., ¶ 16.
As noted above, we have found that the appellant made nonfrivolous
allegations that her whistleblowing disclosures were contributing factors in the
agency’s decision to take seventeen discrete personnel actions against her. We
further find that the cumulative effect of these seventeen actions could constitute
a significant change in her working conditions, responsibilities, or duties under
5 U.S.C. § 2302(a)(2)(A)(xii). The appellant is therefore entitled to a hearing on
the merits of this claim, and we remand this claim to the administrative judge.
The appellant’s remaining arguments are without merit.
The administrative judge found that, because the appellant appealed her
removal as a separate action, it would not be considered in this IRA appeal. ID
at 3. On review, the appellant argues that the administrative judge erred by not
considering her removal as part of her IRA appeal and asserts that her appeals
should have been joined. PFR File, Tab 1 at 5-6. Joinder of two or more appeals
filed by the same appellant may be appropriate when it would expedite processing
of the appeals and when it would not adversely affect the interests of the parties.
5 C.F.R. § 1201.36(b). Despite the fact that both appeals are pending on review,
the appellant has failed to persuade us that joinder would expedite the processing
of her appeals and not adversely affect the interests of the parties. We therefore20
deny her request for joinder. To the extent that the appellant raises arguments
regarding the removal action on review, we will not address them herein.
The appellant argues that the administrative judge failed to consider her
January 27, 2019 stay request.14 PFR File, Tab 1 at 7-8. The appellant requested
that the Board stay personnel actions 95, 98, 100, and 101 (the latter of which she
described at the time as “[a]ny further personnel action”). W-2 AF, Tab 1 at 4-5,
11-13. Contrary to the appellant’s assertion on review, the administrative judge
advised her, in an order granting her an extension of time to file a submission,
that the regulation regarding a motion for a stay was at 5 C.F.R. § 1209.9. W-2
AF, Tab 7 at 1-2. It does not appear that the appellant filed another stay request
in accordance with the administrative judge’s instruction. Even if we construe
the administrative judge’s statement as a denial of her stay request, the appellant
may not challenge that decision through the petition for review process; a request
for interlocutory appeal is the only option. Mason, 116 M.S.P.R. 135, ¶ 30;
Mogyorossy v. Department of the Air Force , 96 M.S.P.R. 652, ¶ 24 (2004). The
appellant did not seek an interlocutory appeal below. Thus, on review, the Board
will not consider her challenge to the administrative judge’s handling of her stay
request.
The appellant asserts that her disciplinary record from the 2012 to 2014
timeframe should have been expunged from the agency’s records and that the
administrative judge erred in referencing them. PFR File, Tab 1 at 8. The
administrative judge referenced this disciplinary history in the background
section of the initial decision. ID at 3. However, it is not clear how this
argument relates to this IRA appeal. Because we are remanding the appeal, the
administrative judge should, if appropriate, address this argument on remand.
14 She also stated that the administrative judge failed to consider her March 21 and
May 24 motions to schedule a settlement conference. PFR File, Tab 1 at 7-8. The
motions identified by the appellant appear to have been filed in her removal appeal.
0108 IAF, Tabs 4, 21. We will address her argument regarding those motions in a
separate order in that matter.21
The appellant also argues that the administrative judge was biased. Id.
at 6-9, 13. 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)).
Here, the appellant attributes the administrative judge’s alleged
adjudicatory errors to “inexplicable negligence or blatant bias.” PFR File, Tab 1
at 13. However, 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). Even if an administrative judge’s remarks are
critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
such remarks ordinarily do not support a bias claim. Liteky, 510 U.S. at 555. The
appellant has failed to establish that the administrative judge’s comments or
actions evidence “a deep -seated favoritism or antagonism that would make fair
judgment impossible,” Bieber, 287 F.3d at 1362-63, and we therefore find her
claim of bias to be without merit.
We provide additional guidance to the administrative judge on remand.
We have found herein that the appellant made nonfrivolous allegations that
her August 22, 2014 A2LA disclosure and her September 6, 2016, October 30,
2018, November 21, 2018, November 27, 2018, December 1, 2018, December 17,
2018, and January 28, 2019 disclosures were whistleblowing disclosures that
were a contributing factor in the personnel actions noted above. On remand, the
administrative judge shall evaluate whether the appellant satisfied her burden by
preponderant evidence; if so, the administrative judge shall proceed to evaluate22
whether the agency proved by clear and convincing evidence that it would have
taken the same personnel actions in the absence of her disclosures.
We find it appropriate to provide the administrative judge with additional
guidance on remand. For example, if the appellant fails to satisfy the
contributing factor knowledge/timing test, the administrative judge shall consider
other evidence, such as that pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding officials, and whether those
individuals had a desire or motive to retaliate against the appellant. Rumsey,
120 M.S.P.R. 259, ¶ 26 .
Additionally, the appellant stated in her August 22, 2014 A2LA email that
it was her “ethical responsibility as NRL [Quality Service Manager] to report
quality issues” and that she did so through “established [a]gency channels without
resolution.” W-2 AF, Tab 8 at 29, 31. It is unclear if the appellant’s disclosure
to A2LA was made in the normal course of her duties; if so, the administrative
judge shall determine whether the “extra proof requirement” applies at the merits
stage, such that the appellant must prove by preponderant evidence that the
agency took a personnel action because of the disclosure and did so with an
improper, retaliatory motive. Salazar v. Department of Veterans Affairs ,
2022 MSPB 42, ¶¶ 9-124. 23
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.24 | Chacon_Joy_NY-1221-18-0167-W-2_Remand_Order.pdf | 2025-02-28 | JOY CHACON v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. NY-1221-18-0167-W-2, February 28, 2025 | NY-1221-18-0167-W-2 | NP |
71 | https://www.mspb.gov/decisions/nonprecedential/Osborne_LaKeevaDE-0432-24-0074-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAKEEVA OSBORNE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DE-0432-24-0074-I-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
LaKeeva Osborne , Denver, Colorado, pro se.
Lisa Leontiev-Koch , Esquire, Judson R. Peverall , Esquire, and Luke
Archer , Esquire, Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her chapter 43 removal . For the reasons set forth below, the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review is DISMISSED as untimely filed without good cause shown.
5 C.F.R. § 1201.114(e), (g).
BACKGROUND
Effective September 7, 2023, the agency removed the appellant from her
position as a GS-7 Purchasing Agent for unacceptable performance. Initial
Appeal File (IAF), Tab 6 at 25-27. She appealed her removal to the Board. IAF,
Tab 1. Based on the written record, IAF, Tab 9 at 3, the administrative judge
issued an April 4, 2024 initial decision sustaining the appellant’s removal, IAF,
Tab 16, Initial Decision (ID) at 2, 28. The administrative judge notified the
appellant that the initial decision would become final on May 9, 2024, unless a
petition for review was filed by that date. ID at 28.
DISCUSSION OF ARGUMENTS ON REVIEW
On May 10, 2024, the appellant electronically filed a petition for review of
the initial decision. Petition for Review (PFR) File, Tab 1. 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 or to waive the time limit for good cause. PFR File, Tab 2
at 1. The agency thereafter filed a response, arguing that the appellant’s petition
for review was untimely filed and that the appellant had failed to file a motion
asking the Board to accept the petition for review as timely or to waive the time
limit. PFR File, Tab 3 at 4-8. The appellant did not respond to either of these
warnings about the untimeliness of her petition.
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 April 4, 2024, and electronically sent to the appellant the same day.
ID at 36. The appellant does not allege that she did not receive the initial2
decision within 5 days of its issuance; accordingly, her petition for review is
untimely by 1 day. 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. See 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 and
her 1-day delay is not lengthy, the appellant provides no explanation for her late
filing despite being given an opportunity to do so. The Board has consistently
denied a waiver of the filing deadline if a good reason for the delay is not shown,
even when the delay is minimal and the appellant is pro se. See, e.g., Gaetos v.
Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 6 (2014) (dismissing a
petition for review that was 3 ½ hours late when the appellant did not address the
untimeliness of her petition); Lockhart v. Office of Personnel Management ,
94 M.S.P.R. 396, ¶¶ 7-8 (2003) (declining to excuse a 5-day filing delay when the
pro se appellant failed to show good cause for the delay). The appellant’s failure
to address the timeliness of her petition for review and the lack of evidence of
circumstances beyond her control or of unavoidable casualty or misfortune that3
prevented her from filing a timely petition for review weigh against finding good
cause.
Moreover, neither the argument contained in the appellant’s petition for
review nor the documents she provides therewith establish good cause for her
untimeliness.2 The appellant’s arguments do not address the filing delay; instead,
the appellant challenges the merits of the agency’s removal action and disagrees
with the administrative judge’s findings. PFR File, Tab 1; 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 the agency’s removal action). Additionally, the
documents she provides with her petition for review, which include annotated
emails and a medical article, are not discernably related to her filing delay and
similarly appear to challenge the merits of the agency’s removal action.
Moreover, all of these documents appear to predate the initial decision. 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).
2 While submitting her petition for review, the appellant was informed that the finality
date for the initial decision had passed. PFR File, Tab 1 at 3. 4
Accordingly, we dismiss the petition for review as untimely filed.3 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 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
3 Even if the appellant had timely filed her petition for review or established good cause
for its untimeliness, the petition does not provide any basis for disturbing the initial
decision. The appellant identified various portions of the initial decision with which
she disagrees, but she has not included references to evidence of record or legal
authority establishing error on the part of the administrative judge. PFR File, Tab 1
at 4-39; see 5 C.F.R. § 1201.114(b) (providing that a petition for review must state a
party’s objections to the initial decision, including all of the party’s legal and factual
arguments, and must be supported by specific references to the record and any
applicable laws or regulations). The appellant also attached evidence to her petition,
but it is unexplained and its relevance to the disputed issues at hand is not apparent.
PFR File, Tab 1 at 40-82. Moreover, to the extent that any of the attached evidence is
presented for the first time on review, the appellant has not shown that it was previously
unavailable. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the
first time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due diligence).
Thus, the petition for review is unavailing on the merits.
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through 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 | Osborne_LaKeevaDE-0432-24-0074-I-1_Final_Order.pdf | 2025-02-28 | LAKEEVA OSBORNE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DE-0432-24-0074-I-1, February 28, 2025 | DE-0432-24-0074-I-1 | NP |
72 | https://www.mspb.gov/decisions/nonprecedential/Welsh_JasonSF-1221-23-0357-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON WELSH,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.DOCKET NUMBER
SF-1221-23-0357-W-1
DATE: February 28, 2025
THIS ORDER IS NONPRECEDENTIAL1
Ari M. Wilkenfeld , Esquire, and Nekeisha Campbell , Esquire, Washington,
D.C., for the appellant.
Marianne Perciaccante , Alexandra Jumper , and Camille V’Estres ,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman 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
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
The appellant is an employee of the Social Security Administration with
more than 20 years of Federal service who was serving an assignment to the
Department of State at the U.S. Embassy in Manila, Philippines. Initial Appeal
File (IAF), Tab 1 at 1, 8, 18. The respondent agency in this case is the
Department of State.
After exhausting his administrative remedies with the Office of Special
Counsel (OSC), the appellant filed the instant IRA appeal and requested a
hearing. IAF, Tab 1. The appellant alleged that he made several disclosures that
the agency’s policy in 2020 denying leave requests from Philippines-based
employees who wanted to engage in international travel was an unlawful restraint
on personal liberty and freedom of movement. Id. at 17, 32-33; IAF, Tab 8
at 5-7. He made these disclosures to the agency’s Office of Ombudsman , in a
grievance procedure, and in Federal court. IAF, Tab 8 at 5-7.
The appellant had sought to take 2 weeks of personal leave in June 2020 to
return to the United States, but his request was denied because the agency was
concerned that he would not be permitted to return due to the COVID-19
pandemic. Id. at 26, 43. The appellant alleged that several personnel actions—
including a hostile work environment, attempts to remove him, and delaying
approval of extension requests of his assignment—were taken against him
because of his disclosures. IAF, Tab 1 at 17-18.
The administrative judge concluded that the appellant did not
nonfrivolously allege that he made a protected disclosure regarding a violation of
law, rule, or regulation, or that he engaged in protected activity, and she
dismissed the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID)
at 9-12. The appellant has filed a petition for review, contesting the2
administrative judge’s conclusion that he did not make a nonfrivolous allegation
of a protected disclosure of a violation of law, rule, or regulation. He also argues
that the administrative judge should have addressed his claim that he made a
nonfrivolous allegation of a protected disclosure of an abuse of authority.
Petition for Review (PFR) File, Tab 1 at 4-6. The agency has filed a response.
PFR File, Tab 4.
ANALYSIS
As relevant here, the Board has jurisdiction over an IRA appeal if an
appellant proves that he exhausted his administrative remedies before OSC and
makes nonfrivolous allegations that (1) he made a disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a). Graves v. Department of
Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016). If an appellant proves Board
jurisdiction over an IRA appeal, he is entitled to a hearing on the merits, if he
requested one. Shope v. Department of the Navy , 106 M.S.P.R. 590, ¶ 5 (2007).
To make a nonfrivolous allegation of a protected disclosure, an appellant
need only plead allegations of fact that, if proven, could show that he made a
disclosure that he reasonably believed evidenced a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. Gabel v.
Department of Veterans Affair s, 2023 MSPB 4, ¶ 6; see 5 U.S.C. § 2302(b)(8);
5 C.F.R. § 1201.4(s); see also Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). In this case, the appellant asserts
that his disclosures evidenced both a violation of law, rule, or regulation and an
abuse of authority. IAF, Tab 1 at 17; PFR File, Tab 1 at 3. The proper test for
determining whether the appellant had a reasonable belief that his disclosures3
were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions evidenced a violation of law, rule, or
regulation or an abuse of authority. See Gabel, 2023 MSPB 4, ¶ 6.
In this case, the administrative judge determined that the appellant did not
nonfrivolously allege disclosures of information that he reasonably believed
evidenced a violation of law, rule, or regulation.2 ID at 10-11. Rather, she
described the disclosures as “fundamental disagreement[s] with the Department’s
travel policy to restrict international travel during the early days of the
[COVID-19] pandemic.” ID at 11. She stated that the appellant’s “purely
subjective perspective” that he was unlawfully restrained was not sufficient to
meet the objective test that he reasonably believed that his disclosures evidenced
a violation of law, rule, or regulation. ID at 10. She concluded that a reasonable
person with knowledge of the relevant facts could not reasonably believe the
agency violated a law, rule, or regulation by denying the appellant’s request for
personal leave. Id.
On review, the appellant argues that he reasonably believed that the
agency’s actions violated a law, rule, or regulation because they were consistent
with the tort of false imprisonment. PFR File, Tab 1 at 6. The appellant further
asserts that he met the “reasonable belief” test because the agency’s actions
affected hundreds of other personnel, some of whom he claims resigned as a
direct result of the agency’s actions. Id. at 7. These arguments provide no basis
to disturb the initial decision. We agree with the administrative judge that a
reasonable person with the appellant’s knowledge could not have reasonably
concluded that the agency’s actions of denying leave to curtail international travel
2 The administrative judge also determined that the appellant did not make a
nonfrivolous allegation that he engaged in a protected activity under 5 U.S.C. § 2302(b)
(9)(A)(i). ID at 11-12. The appellant has not challenged this determination, and we see
no reason to disturb it.4
at the start of a global pandemic amounted to a violation of law, rule, or
regulation, such as false imprisonment.
The appellant claims that the tort of false imprisonment does not require
physical restraint or confinement, stating that it includes “any ‘unlawful restraint’
of an individual’s ‘personal liberty or freedom of movement’ against his will.”
Id. at 6 (quoting 35 C.J.S. False imprisonment § 1 (2019)). In addition, he cites
Johnson v. Barnes & Noble Booksellers, Inc. , 437 F.3d 1112, 1116 (11th Cir.
2006), for the proposition that the tort of false imprisonment “protects the sacred
‘right of every individual to the possession and control of his own person, free
from all restraint or interference of others, unless by clear and unquestionable
authority of law.’” Id. He argues that he had a reasonable belief that the agency
committed a tort against him because he reasonably feared the loss of his job and
primary income if he returned to the United States while using approved personal
leave. Id. We agree with the administrative judge that the appellant could not
have reasonably believed that the agency was unlawfully restraining him under
the circumstances. ID at 10. The fact that other employees may have been
similarly affected does not alter the analysis of the reasonableness of the
appellant’s belief.
The appellant correctly notes that the administrative judge did not address
whether his disclosures nonfrivolously alleged an abuse of authority. PFR File,
Tab 1 at 5-6. We address that argument here. The Board has historically defined
an abuse of authority as an arbitrary and capricious exercise of power by a
Federal official or employee that adversely affects the rights of any person or
results in personal gain or advantage to himself or to other preferred persons. See
Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 22 (2013). In
Smolinksi v. Merit Systems Protection Board , 23 F.4th 1345, 1351-52 (Fed. Cir.
2022), the U.S. Court of Appeals for the Federal Circuit defined an abuse of
authority more broadly as an arbitrary and capricious exercise of authority that is5
contrary to the agency’s mission. Whichever standard is applied in this case, the
result is the same.
The appellant’s disclosures came during the early months of the global
COVID-19 pandemic. IAF, Tab 8 at 5. We find that a reasonable person
standing in the place of the appellant could not have reasonably believed that the
agency’s policy was an abuse of authority. Specifically, we do not believe an
objective person could have viewed the policy as either arbitrary or capricious.
Rather, the policy appears to have reflected the reality at the time that an
employee who departed the Philippines may not have been permitted to reenter
the country. Furthermore, taking preventative measures to avoid having
employees being unable to return to their duty stations cannot be reasonably
viewed as inconsistent with the agency’s mission. For these reasons, we find no
basis to disturb the administrative judge’s finding that the appellant has not made
a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8).
The appellant also argues that the administrative judge inaccurately
described the factual record because she did not state that the appellant’s
immediate supervisor initially approved the leave request before the agency
denied it. PFR File, Tab 1 at 7 (citing ID at 10). The initial decision appears to
have addressed this concern when it stated, “His request was initially approved.”
ID at 3. Moreover, this alleged error is not of sufficient weight to warrant an
outcome different from that of the initial decision. See, e.g., Elder v. Department
of the Air Force , 124 M.S.P.R. 12, ¶ 36 (2016); 5 C.F.R. § 1201.115(a)(1).
Nevertheless, in light of intervening developments in the caselaw, we find
it appropriate to remand this appeal to give the parties an opportunity to brief the
issue of whether the Office of Ombudsman is a “component responsible for
internal investigation or review” within the meaning of 5 U.S.C. § 2302(b)(9)(C)
such that the appellant’s communications with that office might be protected
under that paragraph. See generally Holman v. Department of the Army ,
2025 MSPB 2, ¶ 13; Reese v. Department of the Navy , 2025 MSPB 1, ¶¶ 41-52.6
If the appellant makes a nonfrivolous allegation that his communications to the
Office of Ombudsman were protected under § 2302(b)(9)(C), it would appear that
the remaining jurisdictional criteria are satisfied. IAF, Tab 8.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall afford the parties an opportunity to brief the issue of
whether the appellant’s communications with the Office of Ombudsman were
protected under 5 U.S.C. § 2302(b)(9)(C). The administrative judge shall then
issue a new initial decision consistent with this Remand Order. If she finds that
the appellant failed to make a nonfrivolous allegation that the appellant’s
communications with the Office of Ombudsman were protected under § 2302(b)
(9)(C), the administrative judge should again dismiss the appeal for lack of
jurisdiction. If she finds that the appellant made a nonfrivolous allegation in this
regard, she shall issue an initial decision on the merits, after affording the
appellant his requested hearing. In either case, the administrative judge may
incorporate the findings in her previous decision to the extent that they are
consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Welsh_JasonSF-1221-23-0357-W-1_Remand_Order.pdf | 2025-02-28 | JASON WELSH v. DEPARTMENT OF STATE, MSPB Docket No. SF-1221-23-0357-W-1, February 28, 2025 | SF-1221-23-0357-W-1 | NP |
73 | https://www.mspb.gov/decisions/nonprecedential/Hairston_Kenneth_R_SF-1221-22-0454-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH R. HAIRSTON,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-1221-22-0454-W-2
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dan Hayward , Spokane, Washington, for the appellant.
Simon Caine , Robert P. Erbe , Andrew J. Romey , Joint Base Andrews,
Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action in his individual right of
action (IRA) appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a GG-112 Training Instructor in the Joint
Personnel Recovery Agency (JPRA).3 Hairston v. Department of the Air Force ,
MSPB Docket No. SF-1221-22-0454-W-1, Initial Appeal File (IAF), Tab 12
at 12. He taught numerous Survival, Evasion, Resistance, and Escape (SERE)
training courses, including courses that included in -person role play scenarios.
Hairston v. Department of the Air Force , MSPB Docket No. SF-1221-22-0454-
W-2, Appeal File (W-2 AF), Tab 13, Hearing Transcript (HT) at 142-43, 176-77
(testimony of the appellant); IAF, Tab 13 at 72-78.
On January 17, 2017, the appellant filed a complaint with the agency’s
Office of Inspector General (OIG) in which he raised fraudulent dissemination of
2 General Schedule or “GS” employees account for most Federal positions. Many
positions use GS as a basis for setting pay rates. Some positions use the designator
General Grade or “GG.” The GG pay rates are generally identical to GS pay rates.
3 The appellant’s position was designated as a supervisory position from 2011, when he
was hired by the agency, until November 1, 2018. Hearing Transcript (HT) at 143, 145
(testimony of the appellant). After November 1, 2018, the appellant no longer had
supervisory authority but he continued to perform the same duties.2
bonuses.4 IAF, Tab 9 at 8. As a result of his complaint, the OIG investigated the
JPRA. HT at 143 (testimony of the appellant). Following the investigation,
certain individuals including the appellant were informed that they would no
longer have supervisory duties and the JPRA created a new GG -12 supervisory
position. HT at 143-44 (testimony of the appellant); HT at 138-39 (testimony of
the proposing official). Thereafter, the appellant reported having problems with
coworkers whose actions he perceived to be harassment. HT at 149-55
(testimony of the appellant); HT at 62-63 (testimony of the appellant’s
supervisor). The appellant’s supervisor noted that he attempted to correct the
coworkers’ behavior; the coworkers were also counseled, and the appellant was
moved to another area away from them. HT at 62-69, 82, 96 (testimony of the
appellant’s supervisor).
In September 2018, the appellant began to have panic attacks and other
physical manifestations of post-traumatic stress disorder, anxiety, and depression.
HT at 165 (testimony of the appellant); IAF, Tab 12 at 17-32. As of
February 19, 2019, the appellant’s physicians determined that he was medically
unable to return to work. IAF, Tab 12 at 17-32. The last time the appellant
reported to work was in April 2019. HT at 197 (testimony of the appellant).
On June 18, 2019, the appellant submitted a request for telework as a
reasonable accommodation, noting that his request was “brough[t] on by several
years of hostile work environment and harassment in the workplace.” IAF, Tab 9
at 29-30. The agency determined that the appellant could not perform the
essential duties of his position via telework because his position required him to
teach a SERE course that included in-person role play scenarios. HT at 39-41,
49-50 (testimony of the deciding official); HT at 73 (testimony of the appellant’s
4 The appellant described his OIG complaint as disclosing nepotism, in addition to
fraudulent dissemination of bonuses. IAF, Tab 9 at 2, Tab 20 at 5. In the Order and
Summary of the Prehearing Conference, the administrative judge noted that the
appellant agreed that the nepotism, not fraudulent dissemination of bonuses, was the
only disclosure to the OIG at issue in this appeal. IAF, Tab 21 at 8.3
supervisor); HT at 130-32 (testimony of the proposing official). The agency then
searched for a vacant position to which the appellant could be reassigned, but the
agency was unsuccessful in finding a possible reassignment. IAF, Tab 9 at 34;
HT at 74-75 (testimony of the appellant’s supervisor). As a result, the appellant
remained on leave without pay. IAF, Tab 13 at 14-68.
By letter dated August 14, 2020, the agency directed the appellant to return
to work on September 1, 2020. IAF, Tab 13 at 12-13. However, the appellant did
not return to work. Effective December 8, 2020, the agency removed the
appellant from his position based on the charge of excessive absences.
IAF, Tab 12 at 13-16.
Prior to the issuance of the removal decision, on January 7, 2020, the
appellant filed a complaint with the Office of Special Counsel (OSC), alleging
that the agency constructively demoted him from a supervisory position and
blocked him from competing for a promotion in reprisal for initiating an OIG
investigation.5 IAF, Tab 9 at 26. While the complaint was still pending, the
appellant notified OSC that the agency created a hostile work environment that
led to his removal. Id. at 11. On April 26, 2022, OSC informed the appellant it
had terminated its inquiry into his allegations and notified him of his right to seek
corrective action from the Board. Id. at 26-27.
The appellant filed the instant IRA appeal, alleging that his removal
constituted reprisal for whistleblowing.6 IAF, Tab 1 at 5. The administrative
5 The appellant filed a prior IRA appeal in which he raised the same or similar
personnel actions. Hairston v. Department of the Air Force , MSPB Docket No.
SF1221-19-0125-W-2, Initial Decision (Apr. 30, 2020) (0125 ID). In the 0125 initial
decision, the administrative judge found that the appellant failed to prove that he made
a protected disclosure that was a contributing factor in those personnel actions and
denied the appellant’s request for corrective action. 0125 ID at 2, 15 -20, 24. Neither
party filed a petition for review in the prior appeal, and the initial decision is thus the
Board’s final decision in that case. 5 C.F.R. § 1201.113.
6 In the Order and Summary of the Prehearing Conference, the administrative judge
noted that the appellant agreed that the removal is the only personnel action at issue in
this appeal. IAF, Tab 21 at 8. Thus, we will not discuss any other personnel actions4
judge found that the appellant was entitled to a hearing because he established
jurisdiction over the appeal. IAF, Tab 21 at 6-8. After holding the requested
hearing, the administrative judge issued an initial decision denying the
appellant’s request for corrective action. W-2 AF, Tab 11, Initial Decision (ID)
at 1, 27. The administrative judge found that the appellant did not prove that he
made a protected disclosure in his OIG complaint; however, the appellant proved
that he engaged in protected activity in communicating with the OIG.
ID at 11-12. The administrative judge found that the removal constituted a
personnel action within the meaning of 5 U.S.C. § 2302(a)(2)(A)(iii) and the
appellant proved that his protected activity was a contributing factor in the
agency’s decision to remove him. ID at 13. Lastly, the administrative judge
found that the agency proved by clear and convincing evidence it would have
removed the appellant even if he had not engaged in protected activity.
ID at 14-27.
The appellant has filed a petition for review of the initial decision.7
Petition for Review (PFR) File, Tab 1. The agency has filed a response, and the
appellant has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
To prevail on the merits of an IRA appeal, an appellant must meet his
initial burden of proving by preponderant evidence 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
protected disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Karnes v. Department of Justice , 2023 MSPB 12, ¶ 8. Neither party
that the agency may have taken against the appellant.
7 With his petition for review, the appellant has included portions of a hearing
transcript. PFR File, Tab 1 at 30-103. The entirety of the hearing transcript is included
in the record, and we have referenced the hearing transcript throughout this decision.5
disputes the administrative judge’s finding that, although the appellant did not
prove that he communicated to the OIG a concern about nepotism in the agency,
he proved that he engaged in a protected activity which was a contributing factor
in the agency’s decision to remove him. ID at 11-13.
In reaching that conclusion, the administrative judge determined that the
appellant’s contact with the OIG constituted protected activity under 5 U.S.C.
§ 2302(b)(9)(A). ID at 12. However, protected activity under section 2302(b)(9)
(C) includes “cooperating with or disclosing information to the Inspector
General . . . of an agency, or the Special Counsel, in accordance with applicable
provisions of law.” 5 U.S.C. § 2302(b)(9)(C). Under that broadly worded
provision, any disclosure to the OIG regardless of its content is protected so long
as such disclosure is made in accordance with applicable provisions of law.
Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8. Although the
administrative judge cited section 2302(b)(9)(A) instead of section 2302(b)(9)(C),
his error does not prejudice the appellant’s substantive rights and provides no
basis for reversal of an initial decision . See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984).
When as here, an appellant meets his burden to prove by preponderant
evidence that his protected activity was a contributing factor in the challenged
personnel action, the burden shifts to the agency to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
appellant’s whistleblowing. Soto v. Department of Veterans Affairs ,
2022 MSPB 6, ¶ 6. Clear and convincing evidence is that measure of degree of
proof that produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established. Id., ¶ 9 n.3. In determining whether an
agency has met this burden, the Board will consider the following factors: (1) the
strength of the agency’s evidence in support of its action, (2) the existence and
strength of any motive to retaliate on the part of the agency, and (3) any evidence
that the agency takes similar actions against employees who are not6
whistleblowers but who are otherwise similarly situated. Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider
all of the evidence presented, including evidence that detracts from the
conclusion that the agency met its burden. Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012). For the reasons discussed below, we find
that the agency met its burden to prove by clear and convincing evidence that it
would have taken the same action in the absence of the protected activity.
On review, the appellant disagrees with the administrative judge’s finding
that the agency proved by clear and convincing evidence it would have removed
him absent the protected activity. PFR File, Tab 1 at 12. He notes that he
experienced a hostile work environment which the agency failed to adequately
remedy, and the agency chose not to accommodate his mental disability or engage
in the interactive process. Id. at 14-17. He further notes that he was treated
differently from other similarly situated employees because he had a mental
disability and he was a whistleblower, i.e., other employees were not barred from
teleworking or removed for not handling specific duties such as role -playing
training. Id. at 17-21. He asserts that the agency failed to consider alternative
positions for him, the agency was not receptive to allowing him to return to
employment, and the agency continued to discriminate against him after he was
removed because it blacklisted him for other positions. Id. at 25-27.
Although the appellant challenges the administrative judge’s analysis under
Carr factor 1, his arguments are not necessarily directed toward the strength of
the agency’s evidence in support of the removal. Instead, the appellant focuses
on the agency’s failure to accommodate his mental disability and disparate
treatment of similarly situated employees. PFR File, Tab 1 at 14-21. To the
extent the appellant is claiming that his removal was the result
of disability discrimination, the Board lacks jurisdiction over that claim in the
context of his IRA appeal. See Maloney v. Executive Office of the President,
Office of Administration , 2022 MSPB 26, ¶ 40. Any allegations of harmful error7
by the agency are also not within the authority of the Board to adjudicate in an
IRA appeal. See Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629,
¶ 5 (2014). Similarly, because this is an IRA appeal and not a removal appeal,
the agency is not required to prove its charge of excessive absence by
preponderant evidence; rather, the only merits issues before the Board are
whether the appellant has demonstrated that whistleblowing or other protected
activity was a contributing factor in one or more personal actions and, if so,
whether the agency has demonstrated by clear and convincing evidence that it
would have taken the same personnel action in the absence of the whistleblowing
or other protected activity. Agoranos v. Department of Justice , 119 M.S.P.R.
498, ¶ 18 n.7 (2013); 5 C.F.R. § 1209.2(c) (listing the issues before the Board in
deciding the merits of an IRA appeal).
As to the first Carr factor, the strength of the agency’s evidence in support
of its action, the analysis is based on the evidence before the agency at the time
the action was taken.8 Yunus v. Department of Veterans Affairs , 84 M.S.P.R. 78,
¶ 8 (1999); Russell v. Department of Justice , 76 M.S.P.R. 317, 326 (1997).
Therefore, in assessing Carr factor 1, we must determine whether the
administrative judge erred in finding that the agency submitted strong evidence in
8 Although not raised by either party on review, we note that the Board recently issued a
clarification of Cook v. Department of the Army , 18 M.S.P.R. 610 (1984), which the
administrative judge cited in his initial decision, in Williams v. Department of
Commerce, 2024 MSPB 8, issued after the initial decision. ID at 15. Cook set out the
necessary factors supporting an adverse action based upon excessive leave, such as at
issue here. Cooke, 18 M.S.P.R. 610, 611-12. The recent Williams decision held that an
agency cannot rely on absences that predate its warning that an adverse action could be
taken unless the individual became available for duty. Williams, 2024 MSPB 8, ¶¶ 6-8.
Here, while the agency’s removal action could not be sustained if this were an adverse
action appeal because the agency did not issue its warning to the appellant until August
2020, which was after the February 2019 to February 2020 period underlying the
agency’s charge, in an IRA appeal such as this, the agency need not prove its charge as
it would in an adverse action appeal. Agoranos, 119 M.S.P.R. 498, ¶ 18 n.7; 5 C.F.R.
§ 1209.2(c) (listing the issues before the Board in deciding the merits of an IRA
appeal). Thus, the agency’s legal misstep was not obvious when the agency acted
because the Board had not yet issued its Williams decision and is not a factor when
evaluating the strength of the agency’s evidence here.8
support of the charge of excessive absences. ID at 16. For the following reasons,
we discern no error.
The administrative judge found that the agency presented strong evidence
in support of the charge of excessive absences, which weighs in favor of the
agency on the clear and convincing evidence issue for Carr factor 1. ID at 14-20.
Here, the agency removed the appellant from his position based on the charge of
excessive absences between February 19, 2019, and February 18, 2020.
IAF, Tab 12 at 33. The administrative judge noted that the appellant articulated
that he was not medically able to return to work in his position and that he had
been medically unable to return to work since February 2019. Id. at 17-19;
ID at 15. In fact, as the administrative judge observed, the appellant had been
absent from work for more than 18 months at the time of his removal. ID at 16.
He found the agency’s testimony persuasive that, while the appellant was absent
from his position, it continued to teach the in-person SERE 220 course and had to
utilize instructors from other areas to cover the appellant’s responsibilities in his
absence. ID at 16. Thus, he found that the agency submitted strong evidence in
support of the charge of excessive absences. Id. By the time of his response to
the proposed removal and the agency’s decision to sustain that removal, the
appellant had been absent for more than a year and a half, and there seemed to be
no end in sight, given his medical condition. E.g., IAF, Tab 12 at 17, 19.
Therefore, we agree that the evidence in support of the agency’s efforts to remove
the appellant was strong when it acted.
Independent of proffering strong evidence in support of its charge, the
agency must also submit strong evidence in support of its penalty determination.
Whitmore, 680 F.3d at 1374 (stating that “the agency must still prove by clear and
convincing evidence that it would have imposed the exact same penalty in the
absence of the protected disclosures”) (emphasis in original). Here, the proposed
removal and removal decision does not specifically mention the Douglas factors
that the proposing and deciding officials considered in determining the9
appropriate penalty. IAF, Tab 12 at 14-16, 33-35. However, because this is an
IRA appeal, the appropriateness of the penalty imposed by the agency is not at
issue. Weaver v. Department of Agriculture , 55 M.S.P.R. 569, 576
(1992); see 5 C.F.R. § 1209.2(c). However, factors that an agency is required to
consider in determining the appropriate penalty may also be relevant to assessing
the Carr factors at issue here. See Bair v. Department of Defense , 117 M.S.P.R.
374, ¶ 9 (2012) (finding that an agency can consider the pertinent mitigating and
aggravating factors in determining the reasonableness of the penalty when an
employee is charged with excessive absences); Schneider v. Department of
Homeland Security , 98 M.S.P.R. 377, ¶¶ 5, 21-22 (2005) (finding that a witness’s
anticipated testimony regarding his allegedly more favorable treatment under
circumstances similar to those that led to the appellant’s suspension was relevant
and material to the Carr factors, as well as to the reasonableness of
the penalty); Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06
(1981) (providing a nonexhaustive list of factors that are relevant to determining
the reasonableness of a penalty).
In the removal decision, the deciding official noted that “this action
promotes the efficiency of the service and is based on your inability to maintain a
full-time regular work schedule with no end in sight.” IAF, Tab 12 at 14. At the
hearing, the agency proffered testimony that the appellant’s absences had an
adverse impact on the agency because his position was critical, he was not
performing his duties, his absences had no foreseeable conclusion, and there was
a high demand for SERE courses because they were required by military
personnel prior to deployment. HT at 136-37 (testimony of the proposing
official); see Douglas, 5 M.S.P.R. 280, 305 -06. We agree that the agency’s
action was reasonable in light of the circumstances and supported by the record.
Accordingly, we find no reason to disturb the administrative judge’s findings
concerning the first Carr factor, which weighs in favor of the agency.10
Regarding Carr factor 2, the administrative judge found that the proposing
and deciding officials were not implicated in the matters disclosed in the
appellant’s OIG complaint, which predated their assignments within JPRA, and
thus, they did not have personal motivation to retaliate against the appellant for
his OIG complaint. ID at 21. The administrative judge considered that, although
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. ID at 21; see Whitmore, 680 F.3d at 1370 (noting that “[t]hose
responsible for the agency’s performance overall may well be motivated to
retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their capacities as managers and employees”). In fact, as the administrative
judge observed, the agency’s OIG investigated the JPRA and ultimately issued
recommendations regarding the structure of the JPRA, which the proposing and
deciding officials were involved in implementing. ID at 21. Thus, the
administrative judge found, and we agree, that, although the proposing and
deciding officials had no personal motive to retaliate against the appellant, there
was at least some professional motive to retaliate and this factor weighed against
the agency, but not significantly.9 ID at 25-26.
Regarding Carr factor 3, the administrative judge found no evidence of
whether the agency took similar action against similarly situated
non-whistleblowers. ID at 26. In so finding, he noted that the deciding official
testified that he removed another employee for excessive absences, but the
agency provided no evidence regarding whether the employee was a
whistleblower. ID at 26; HT at 47-48, 52 -53 (testimony of the deciding official);
9 With respect to the appellant’s claim that the poor treatment he received from his
coworkers was part of a command -directed campaign of reprisal against him, the
administrative judge concluded, and we agree, that there was little credible evidence to
support the appellant’s belief in that regard. ID at 21-25.11
see Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir.
2018) (finding that Carr factor 3 only concerns non -whistleblowers and the
treatment of similarly situated whistleblowers has no bearing on that factor).
Thus, he found that this factor was effectively neutral. ID at 26.
The absence of evidence on Carr factor 3 can either be neutral or “cut[]
slightly against the Government,” depending on the circumstances. Miller v.
Department of Justice , 842 F.3d 1252, 1262 (Fed. Cir. 2016) (citing Whitmore,
680 F.3d at 1374). The agency “is required to come forward with all reasonably
pertinent evidence” regarding this factor because it has greater access to such
information. Whitmore, 680 F.3d at 1374-75. The agency does not have an
affirmative burden to produce evidence concerning each and every Carr factor,
including Carr factor 3, but the absence of any evidence relating to Carr factor
can effectively remove that factor from the analysis, and may well cause the
agency to fail to prove its case overall. Id. Thus, given the lack of evidence that
similarly situated non-whistleblowers were removed, we find that Carr factor 3
cuts slightly against the agency. See Miller, 842 F.3d at 1262-63 (explaining that,
where an agency presented little or weak evidence for the first two Carr factors,
the lack of evidence for Carr factor 3, “if anything, tends to cut slightly against
the Government”).
Overall, based on the administrative judge’s findings that the Carr factor 1
weighed strongly in favor of the agency and that factors 2 and 3 weighed slightly
against the agency, we agree with his conclusion that the agency proved by clear
and convincing evidence that it would have terminated the appellant absent his
protected activities. ID at 26-27.12
NOTICE OF APPEAL RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative14
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 15
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.16
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Hairston_Kenneth_R_SF-1221-22-0454-W-2_Final_Order.pdf | 2025-02-28 | KENNETH R. HAIRSTON v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-1221-22-0454-W-2, February 28, 2025 | SF-1221-22-0454-W-2 | NP |
74 | https://www.mspb.gov/decisions/nonprecedential/King_MelissaCH-1221-23-0049-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA KING,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-1221-23-0049-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan V. Edmunds , Esquire, Christopher Snowden , Esquire, and
Samir Nakleh , Esquire, Ponte Vedra Beach, Florida, for the appellant.
Gary P. Chura , Esquire, Fort Leonard Wood, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to supplement the administrative
judge’s conclusion that the appellant did not nonfrivolously allege that she made
a protected disclosure under 5 U.S.C. § 2302(b)(8) and to find that the appellant
did not establish Board jurisdiction over a claim that the agency perceived her as
a whistleblower, we AFFIRM the initial decision.
BACKGROUND
The appellant worked as a GS-0681-04 Dental Assistant at the United
States Army DENTAC Command, Central Dental Health Activity, in Fort
Leonard Wood, Missouri. Initial Appeal File (IAF), Tab 1 at 1. Her
career-conditional appointment, effective March 1, 2021, was subject to the
completion of a 2-year probationary period. IAF, Tab 18 at 39. On June 24,
2022, the agency notified the appellant that it was terminating her effective
July 1, 2022, for failure to demonstrate the skills and character traits necessary
for satisfactory performance of her position. IAF, Tab 2. On July 14, 2022, the
appellant filed a complaint with the Office of Special Counsel (OSC) alleging that
her termination was in retaliation for protected activity including reporting issues2
she had with a coworker, filing a classification appeal, and requesting union
assistance. See IAF, Tab 6, Tab 7 at 4-5, Tab 8. On October 17, 2022, OSC
notified the appellant that it was closing her case and informed her of her right to
file an IRA appeal with the Board. IAF, Tab 8 at 4.
The instant, timely appeal followed. IAF, Tab 1. The appellant raised the
same allegations set forth in her OSC complaint. See IAF, Tab 1 at 6, Tab 7 at
4-5. The administrative judge issued an order informing the appellant of the
applicable legal standards and burdens of proof for establishing Board
jurisdiction in an IRA appeal and instructed the parties to submit evidence and
argument regarding whether the Board had jurisdiction over the appellant’s
claims. IAF, Tab 4. Both parties submitted several responses. The
administrative judge subsequently issued an initial decision, without holding the
requested hearing, dismissing the appeal for lack of jurisdiction. IAF, Tab 24,
Initial Decision (ID) at 1-2. The administrative judge first found that the
appellant exhausted her claims that she disclosed several grievances to her union
and her supervisor regarding day-to-day aspects of her job, including the duration
of regularly scheduled breaks and lunch, being asked to report to another duty
station during her shift, and having an unspecified issue with a coworker, and that
she filed a “classification appeal” with the Office of Personnel Management
(OPM) asking to have her position re-graded. ID at 4-5. However, the
administrative judge concluded that the appellant did not nonfrivolously allege
that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9). ID at 5-9. He therefore found
that the appellant did not establish Board jurisdiction over her appeal. ID at 9-10.
The appellant, who was pro se below and is now represented by counsel,
has filed a petition for review. Petition for Review (PFR) File, Tab 1. She argues
that the administrative judge erred by not finding that her grievance to her
supervisor claiming that the agency was violating the union’s collective
bargaining agreement (CBA) by not allowing allotted break times constituted a3
protected disclosure and that the agency perceived her as a whistleblower, id.
at 6, 8-12, and that the administrative judge should have afforded her a “special
accommodation” because she was proceeding pro se, id. at 6-8. The agency did
not file a response.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal, an appellant must show
that she exhausted her administrative remedies before OSC and make the
following nonfrivolous allegations: (1) that 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) that the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined under 5 U.S.C. § 2302(a). Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C.
§§ 1214(a)(3), 1221(e)(1). A nonfrivolous allegation of a protected
whistleblowing disclosure is an allegation of fact that, if proven, would show that
the appellant disclosed a matter that a reasonable person in her position would
believe evidenced one of the categories of wrongdoing specified in 5 U.S.C.
§ 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6. The test to determine whether a
putative whistleblower has a reasonable belief in the disclosure is an objective
one: whether a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced a violation of law, rule, 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. The disclosures must be
specific and detailed, not vague allegations of wrongdoing. Id. As relevant here,
protected activity under section 2302(b)(9)(A)(i) includes “the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation . . .
with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C. § 2302(b)4
(9)(A)(i). Thus, only complaints seeking to remedy whistleblower reprisal are
covered under section 2302(b)(9)(A)(i). See Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013).
The administrative judge correctly found that the appellant did not nonfrivolously
allege that she made protected disclosures.
Below, the appellant argued that she made protected disclosures when she
submitted grievances to her union and to her supervisor regarding issues with
break time, eating at work, and utilizing a personal vehicle to transfer between
duty locations. See IAF, Tab 5, Tab 14. In particular, she alleged that she
complained to both her union and supervisor about not being allowed or able to
take full break and lunch times, and that this disclosed a “violation of the laws to
the union,” and that, as a whole, her disclosures evidenced a violation of law, rule
or regulation, gross mismanagement, and an abuse of authority. IAF, Tab 7 at 4,
Tab 14 at 3.
In the initial decision, the administrative judge concluded that the record
did not support finding that the appellant nonfrivolously alleged that she made a
protected disclosure under 5 U.S.C. §2302(b)(8). ID at 7. He specifically found
that the appellant’s grievances did not disclose a violation of law, rule or
regulation, gross mismanagement, gross waste of funds, abuse of authority, or a
substantial and specific danger to public health or safety, although he did not
explicitly detail why he found that the appellant did not disclose a violation of a
law, rule, or regulation. ID at 8. The administrative judge noted that the
appellant had at most complained about not getting sufficient break periods or
other benefits that she may or may not have been entitled to under the CBA, and
that her grievances related exclusively to her disagreements with her supervisor
about job breaks and similar day-to-day perks. ID at 8-9.
On review, the appellant contends that the administrative judge should have
considered that she reasonably believed that her disclosure that the agency was
violating the CBA by not allowing allotted rest times was a violation of the5
“regulations governing the agency.” PFR File, Tab 1 at 8. She explains that after
she made this disclosure to her supervisor, an agency official stated in an email
response discussing the language of the CBA concerning rest periods that the
CBA constitutes “policies and regulations that legally govern” the agency. Id.
at 11; see also IAF, Tab 7 at 42. The appellant claims that the agency’s statement
therefore indicates that both she and the agency reasonably believed that she was
disclosing a violation of law, rule, or regulation.2 PFR File, Tab 1 at 11.
We are not persuaded. Regardless of whether the parties’ CBA is
considered a “law, rule, or regulation” for purposes of 5 U.S.C. § 2302(b)(8), we
find that the appellant did not nonfrivolously allege that a reasonable person
would believe that the agency violated the CBA here. See Salerno, 123 M.S.P.R.
230, ¶ 6. The cited provision of the CBA regarding rest periods reflects that the
agency “will make every effort” to plan work so as to permit a 15-minute rest
period during each one-half work shift of each workday, taken in either
increments or all at one time, but that variations in workload will be taken into
consideration in scheduling the rest period. IAF, Tab 7 at 20. The provision does
not make rest periods mandatory, nor does it dictate that they be taken at a certain
time as the appellant had complained about. Id.; see also IAF, Tab 7 at 4.
Instead, the provision allows for discretion and consideration of variables such as
workload. Indeed, the appellant’s union representative acknowledged this fact in
her email to the agency raising this same complaint in which she conceded that “it
is true” that mission requirements may require a civilian to work through a
morning or afternoon break, and she in fact emphasized the specific language of
the provision that makes it flexible. IAF, Tab 7 at 17. Furthermore, contrary to
2 In her petition for review, the appellant does not dispute nor discuss any findings
related to her grievances regarding changing duty stations, having an unspecified issue
with a coworker, or her “classification appeal” with OPM. See PFR File, Tab 1. We
see no reason to disturb the initial decision in this regard. Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility).6
the appellant’s suggestion otherwise, the union’s email does not clearly allege a
violation of the CBA and the record does not contain a grievance on this issue
that asserts as much. See PFR File, Tab 1 at 3-4; IAF, Tab 7 at 17 -19.
Accordingly, based on the record before us we find that a reasonable person
reviewing the CBA could not conclude that the agency violated it by sometimes
not allowing full rest periods or rest periods at a specific time. Accordingly, we
agree with the administrative judge that the appellant did not nonfrivolously
allege that she made a protected disclosure under 5 U.S.C. § 2302(b)(8).3 See ID
at 9.
The appellant did not nonfrivolously allege that the agency perceived her as a
whistleblower who made or intended to make disclosures that evidenced a type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8).
In her petition for review, the appellant also claims that the administrative
judge erred by failing to consider that the agency perceived her as a
whistleblower making a protected disclosure of a violation of law, rule, or
regulation since the agency indicated in its email to her that the CBA is a policy
and regulation governing the agency. PFR File, Tab 1 at 8. Although the
appellant mentioned being perceived as a whistleblower in her jurisdictional
pleadings below, the administrative judge did not address it.4 See IAF, Tab 14
at 3-4. We thus modify the initial decision to find that the appellant’s claim is
unavailing.
Under certain circumstances, an appellant can establish jurisdiction over an
IRA appeal without making a nonfrivolous allegation that she made a protected
disclosure. King v. Department of the Army , 116 M.S.P.R. 689, ¶ 6 (2011).
3 Consequently, we also agree that the administrative judge correctly concluded that the
appellant’s grievances were not directed to remedying a violation of 5 U.S.C. § 2302(b)
(8) and thus that her allegations do not support Board jurisdiction as protected activity
under 5 U.S.C. § 2302(b)(9). See ID at 8-9.
4 The administrative judge did, however, properly advise the appellant of her burden to
establish a claim that the agency perceived her as a whistleblower in his jurisdictional
order. IAF, Tab 4 at 5.7
Specifically, an individual who is perceived as a whistleblower is still entitled to
the protections of the Whistleblower Protection Act, as amended by the
Whistleblower Protection Enhancement Act of 2012, even if she has not made
protected disclosures or engaged in protected activity. Id.; Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶¶ 12-13 (2016), overruled
on other grounds by Requena v. Department of Homeland Security , 2022 MSPB
39. To establish the Board’s jurisdiction over a claim of retaliation for being
perceived as a whistleblower, the appellant must show that she exhausted her
administrative remedies with OSC and make nonfrivolous allegations that (1) the
agency perceived her as making or intending to make a whistleblowing
disclosure, or engaging in or intending to engage in a protected activity, and
(2) the agency’s perception was a contributing factor in its decision to take or not
take the personnel action at issue. See Corthell, 123 M.S.P.R. 417, ¶¶ 12-13;
Rumsey v. Department of Justice , 120 M.S.P.R. 259, ¶ 8 (2013).
Here, we find that the appellant exhausted her administrative remedies
before OSC. The substantive requirements of exhaustion are met when an
appellant has provided OSC with sufficient basis to pursue an investigation that
might lead to corrective action. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is limited to
those issues that have been previously raised with OSC. Id. An appellant may
demonstrate exhaustion through her initial OSC complaint or correspondence
with OSC. Id., ¶ 11. The appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
Id.. In this case, the appellant stated in the attachment to her OSC complaint that
her supervisor told her that management knew she was the one to complain to the
union about break and lunch times and that she believed management viewed her
actions as a challenge to their authority. IAF, Tab 7 at 4-5. She also claimed
several times that her supervisors knew she “was responsible” for various
grievances and complaints made prior to her termination, suggesting that this8
played a role in her termination. Id. Taken as a whole and in context, we find
that the appellant’s OSC complaint sufficiently contained an allegation that she
was perceived as a whistleblower. The appellant therefore exhausted her
administrative remedies as to this claim.
However, we find that the appellant did not make a nonfrivolous allegation
that agency officials involved believed that she made or intended to make
disclosures that evidenced a type of wrongdoing listed under 5 U.S.C. § 2302(b)
(8). As set forth above, the CBA provision regarding rest periods contains non-
compulsory language, which even the appellant’s union representative
acknowledged. See IAF, Tab 7 at 20. Indeed, when the appellant complained to
her supervisor that she “had not been able to take [her] contractual 15 -minute
break at 11:20 a.m.,” her supervisor responded specifically emphasizing the
non-mandatory language of the CBA provision. IAF, Tab 7 at 4, 20. We find
that these communications indicate that the agency did not reasonably perceive
the appellant as disclosing a violation of law, rule, or regulation—assuming the
CBA qualifies as such for purposes of 5 U.S.C. § 2302(b)(8). As a result, the
appellant has not established jurisdiction over her claim that the agency retaliated
against her based on its perception that she was a whistleblower.
The appellant’s remaining claim provides no basis for disturbing the initial
decision.
As noted above, the appellant also argues on review that the administrative
judge erred by not affording her “special accommodation” because she was
proceeding pro se. PFR File, Tab 1 at 6-8. She compares the facts of her case to
those presented in O’Keefe v. U.S. Postal Service , 318 F.3d 1310 (Fed. Cir.
2002), in support of her argument that the administrative judge should have
notified her that she “lacked evidence to prove her case,” had a phone call with
her to discuss the evidence required for her case, or should have otherwise
provided her with additional guidance. Id.; see also Goodnight v. Office of
Personnel Management , 49 M.S.P.R. 184, 188 (1991) (remanding an appeal9
because the administrative judge did not advise the pro se appellant before the
record closed of her burden and the evidentiary requirements).
The appellant’s claim has no merit. The administrative judge’s
jurisdictional order thoroughly informed her of the type of information and
evidence necessary for her to prove her case. See IAF, Tab 4. In fact, the
administrative judge explicitly and clearly laid out each piece of information
needed for the appellant to support her claim. Id. at 7. The appellant filed
several jurisdictional responses and submitted a variety of evidence
demonstrating that she understood her burden. IAF, Tabs 5-8, 14-17, 19 -21.
Furthermore, the administrative judge plainly stated in his jurisdictional order
that the appellant could call his office if she had “a question about any of the case
processing instructions in this Order.” IAF, Tab 4 at 1.
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.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you11
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | King_MelissaCH-1221-23-0049-W-1_Final_Order.pdf | 2025-02-28 | MELISSA KING v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-1221-23-0049-W-1, February 28, 2025 | CH-1221-23-0049-W-1 | NP |
75 | https://www.mspb.gov/decisions/nonprecedential/Dewey_Warren_W_DE-1221-24-0166-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WARREN W. DEWEY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-1221-24-0166-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janice Jackson , Leavenworth, Kansas, for the appellant.
Autumn Marie Hayes , Fort Leavenworth, Kansas, for the agency.
Kristine Hale Bell , Fort Eustis, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman 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. 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 predominantly reiterates his arguments from
below that he made a protected disclosure when he declined to start Secure
Internet Protocol Room duties at his supervisor’s request due to an alleged lack of
training and the repercussions it could have on national security. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review.
Except as expressly MODIFIED to correct the characterization of the covered
personnel action at issue in this appeal, we AFFIRM the initial decision.
The administrative judge stated that the sole personnel action at issue was
the appellant’s demotion but did not analyze this action further because he found
that the appellant failed to nonfrivolously allege that he made a protected
disclosure or engaged in protected activity within the scope of the Board’s IRA
jurisdiction. Initial Appeal File (IAF), Tab 10, Initial Decision at 1, 3-6. We
clarify here that the covered personnel action at issue is not a demotion but a
“decision concerning pay, benefits, or awards” under 5 U.S.C. § 2302(a)(2)(A)
(ix).
The Board has chapter 75 jurisdiction over reductions in grade and pay.
5 U.S.C. §§ 7512(3)-(4), 7513(d). However, when, as here, a reclassification of
an employee results in a reduction in pay and grade and the employee has2
received retained pay and grade, the employee has no chapter 75 appeal rights to
the Board. Broderick v. Department of the Treasury , 52 M.S.P.R. 254, 258
(1992). The appellant asserted below that he was subject to a demotion. IAF,
Tab 1 at 4, Tab 7 at 5. However, his position was in fact reclassified from a
GS-13 to a GS-12 and, under the agency’s pay retention policy, he was to retain
his GS-13 salary for 2 years. IAF, Tab 9 at 58-60.
In an initial decision issued on May 10, 2023, an administrative judge
previously found that the appellant did not suffer a chapter 75 “demotion” but
rather the appellant’s position was “downgraded following a reclassification
where grade and pay retention were provided.” Dewey v. Department of the
Army, MSPB Docket No. DE-3443-23-0190-I-1, Initial Decision (0190 ID) at 3-5
(May 10, 2023). Neither party filed a petition for review and the initial decision
is now the final decision of the Board on this issue. 0190 ID at 8; see 5 C.F.R.
§ 1201.113.
While a reduction in grade with retention of pay and benefits under
chapter 75 is not appealable, in an IRA appeal this can qualify as a personnel
action. The Board has previously held that an agency’s refusal to reclassify a
position at a higher grade level, when the duties of the position warrant a higher
classification, constitutes a “decision concerning pay” under 5 U.S.C. § 2302(a)
(2)(A)(ix) and is a personnel action. Briley v. National Archives and Records
Administration, 71 M.S.P.R. 211, 221-22 (1996). Thus, we find that the appellant
has nonfrivolously alleged that he was subject to “a decision concerning pay,
benefits, or awards” that qualified as a personnel action when his position was
reclassified. In any event, because we agree with the administrative judge’s
determination that the appellant failed to nonfrivolously allege that he made a
protected disclosure or engaged in a protected activity within the scope of the
Board’s IRA jurisdiction, we affirm the administrative judge’s determination.
See Schmittling v. Department of the Army , 219 F.3d 1332, 1336 -37 (Fed. Cir.
2000) (explaining that, in an IRA appeal, the Board may find it lacks jurisdiction3
based on an appellant’s failure to meet any one of the jurisdictional
prerequisites).
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).
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 | Dewey_Warren_W_DE-1221-24-0166-W-1_Final_Order.pdf | 2025-02-28 | WARREN W. DEWEY v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-1221-24-0166-W-1, February 28, 2025 | DE-1221-24-0166-W-1 | NP |
76 | https://www.mspb.gov/decisions/nonprecedential/Ferrell_William__H_AT-1221-22-0459-W-1_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM H. FERRELL,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
AT-1221-22-0459-W-1
DATE: February 28, 2025
William H. Ferrell , Orange Park, Florida, pro se.
George N. Barnes , Esquire, and Julia Zukina , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action
whistleblower reprisal appeal. Vice Chairman Kerner and Member Limon have
recused themselves from consideration of this case. Because there is no quorum
to alter the administrative judge’s initial decision, the initial decision now
becomes the final decision of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R.
§ 1200.3(b)). This decision shall not be considered precedent by the Board in any
other case. 5 C.F.R. § 1200.3(e).
NOTICE OF APPEAL RIGHTS1
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on3
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or4
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.5
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 | Ferrell_William__H_AT-1221-22-0459-W-1_Order.pdf | 2025-02-28 | WILLIAM H. FERRELL v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. AT-1221-22-0459-W-1, February 28, 2025 | AT-1221-22-0459-W-1 | NP |
77 | https://www.mspb.gov/decisions/nonprecedential/Simpson_Susan_L_AT-0842-18-0549-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUSAN LYN SIMPSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-0842-18-0549-I-2
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephan B. Caldwell , Esquire, Riverdale, Georgia, for the appellant.
Kendall Scott Rocio , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed its decision denying the appellant’s request for Federal Employees’
Retirement System (FERS) air traffic controller (ATC) special retirement
coverage. 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 July 14, 2003, the agency appointed the appellant to the position of Air
Traffic Control Specialist, GS-2152-11. Simpson v. Department of the Navy ,
MSPB Docket No. AT-0842-18-0549-I-1, Initial Appeal File (IAF), Tab 10
at 127; Hearing Transcript (HT) at 139 (testimony of the appellant). On
February 16, 2017, the appellant requested a position review, seeking a
determination that she was entitled to special retirement coverage retroactive to
her appointment date. IAF, Tab 24 at 44. On May 8, 2018, the agency issued a
final decision finding that the appellant’s request was untimely and that her
position did not meet the requirements for special retirement coverage. IAF,
Tab 13 at 21-23.
The appellant filed a Board appeal contesting the agency’s decision. IAF,
Tab 1. After a hearing, the administrative judge issued an initial decision
reversing the agency’s determination and ordering the agency to grant the
appellant ATC special retirement coverage. Simpson v. Department of the Navy ,2
MSPB Docket No. AT-0842-18-0549-I-2, Appeal File (I-2 AF), Tab 20, Initial
Decision (ID). The agency has filed a petition for review, disputing the initial
decision on several bases. Petition for Review (PFR) File, Tab 1. The appellant
has responded in opposition to the petition for review, and the agency has filed a
reply to the appellant’s response. PFR File, Tabs 7-8.
ANALYSIS
Under 5 U.S.C. § 8412(e), an individual employed as an ATC is entitled to
an immediate retirement annuity after 25 years of service or after becoming
50 years of age and completing 20 years of service. This is earlier than most
employees covered under FERS may retire. See 5 U.S.C. § 8412(a)-(c). In
addition, individuals covered by 5 U.S.C. § 8412(e) receive an enhanced annuity
compared to most employees covered under FERS. Compare 5 U.S.C.
§ 8415(a), (i), with 5 U.S.C. § 8415(e). The agency head is responsible for
determining, based on the position description and other appropriate evidence,
whether a given position is an ATC position. 5 C.F.R. §§ 842.803(c), .804(b).
The agency’s final decision is appealable to the Board. 5 C.F.R. § 842.807(a).
An employee seeking special retirement coverage bears the burden of proving, by
preponderant evidence, her entitlement to such coverage. Fritts v. Department of
Homeland Security , 102 M.S.P.R. 265, ¶ 6 (2006).
The appellant has rebutted the presumption that the agency’s retirement status
determination was correct.
If the agency head has not determined that a given position is an ATC
position, and the incumbent employee has not requested such determination
within 6 months of entering the position, then the agency head’s determination
that the service was not so covered at the time of the service is presumed to be
correct. 5 C.F.R. § 842.804(c). The employee may rebut this presumption by
showing that she was unaware of her status or was prevented by cause beyond her
control from requesting that the official status be changed at the time the service3
was performed. Id. If the employee does not request ATC credit within the
6-month period specified in section 842.804(c) or show good cause for the failure
to do so, the agency’s determination will be deemed conclusive and the Board
will not review the merits of that determination. Bingaman v. Department of the
Treasury, 127 F.3d 1431, 1441 (Fed. Cir. 1997).
In her initial decision, the administrative judge found that, although the
appellant did not request a coverage determination within 6 months of entering
the Air Traffic Control Specialist position, she was unaware of her status at the
time and requested a coverage determination promptly after she learned of her
status. ID at 2-4. Specifically, the administrative judge found that the appellant
was not initially aware of her status and believed that she was covered under the
ATC retirement system. ID at 3. It was not until she attended a 2013 retirement
seminar that the appellant noticed that her leave and earnings statement indicated
that she was not in the ATC special retirement system. Id. The seminar
instructor told the appellant that this was probably a coding error, and that she
should contact the Defense Finance Accounting Service to get it corrected.
ID at 3-4. However, once it became clear that this was more than a coding issue,
the appellant “began to vigorously pursue[] the matter.” ID at 4. Based on these
facts, the administrative judge found that the appellant successfully rebutted the
presumption of 5 C.F.R. § 842.804(c) and proceeded to the merits of the
retirement coverage determination. ID at 4.
On review, the agency argues that the evidence does not support the
administrative judge’s findings. PFR File, Tab 1 at 9-12, 17-25. Specifically, the
agency argues that there is no evidence to support the appellant’s testimony that
she attempted to correct her retirement coverage expeditiously after the 2013
retirement seminar; the earliest documentary evidence of the appellant’s attempt
to correct her retirement coverage dates to March 2016—3 years after the 2013
retirement seminar. PFR File, Tab 1 at 9-11, 19-20; IAF, Tab 13 at 7-9. In fact,
the appellant made several prior inconsistent statements about when the4
retirement seminar was held and when she first attempted to contest her
retirement coverage. PFR File, Tab 1 at 11-12, 20-23. The agency argues that,
by waiting 3 years to pursue special retirement coverage, the appellant did not act
expeditiously and therefore failed to rebut the presumption of correctness as set
forth in 5 C.F.R. § 842.804(c). Id. at 23-25.
We find that the agency’s arguments provide no basis to disturb the initial
decision because they conflate the date on which the appellant became aware of a
problem with her retirement coverage code with the date on which she became
aware of a problem with her actual retirement coverage. The administrative judge
did not find that the appellant became aware of her retirement status during the
2013 seminar. Rather, she found that the appellant became aware that the coding
on her leave and earnings statement was inconsistent with ATC special retirement
coverage. ID at 3-4. Her efforts to correct the coding issue do not show that she
was yet aware that she was actually in a non-ATC retirement system. See
Streeter v. Department of Defense , 80 M.S.P.R. 481, ¶ 9 (holding that, when an
appellant claims that she was unaware of her retirement status under 5 C.F.R.
§ 842.804(c), the question is whether she was actually unaware). In other words,
the appellant was under the impression that the coding did not match her
coverage. It was during this process of attempting to correct the presumed coding
error that the appellant learned that the coding was correct and that her position
had been excluded from ATC special retirement coverage. ID at 4.
There is nothing in the record to contradict the administrative judge’s
finding that the appellant worked expeditiously thereafter to attain ATC special
retirement coverage. ID at 3-4. Not only is this finding consistent with the
appellant’s testimony, HT at 142-82 (testimony of the appellant), but it is also
consistent with the documentary evidence that the agency cites on review. This
evidence shows that, on March 23, 2016, the appellant contacted the agency’s
Civilian Benefits Center (CBC), stating that she was “in the Wrong [sic]
retirement code.” I-2 AF, Tab 13 at 7-8. The CBC worked on the issue for5
several months, trying to get the retirement code “corrected.” Id. at 8. It was not
until June or July 2016 that a human resources official notified CBC that the
coding was not a clerical error because the appellant’s position description “does
not reflect the duties of an ATC and should not be in the coverage.” Id. The
earliest documentary evidence even suggesting that the agency informed the
appellant of her status is a CBC case log entry dated July 6, 2016, stating that the
appellant’s supervisor had briefed her on the issue. Id. According to the agency,
the appellant requested a new coverage determination on October 13, 2016—
approximately 3 months later. IAF, Tab 13 at 21. Because the appellant sought a
special retirement coverage determination within 6 months of the date that she
became aware of her status, we find that the presumption of correctness under
5 C.F.R. § 842.804(c) has been rebutted and that the Board may review the merits
of the agency’s determination. See Mosely v. Department of Veterans Affairs ,
86 M.S.P.R. 302, ¶¶ 8-9 (2000).
The appellant has stated a claim upon which relief can be granted.
An appeal within the Board’s jurisdiction may be dismissed for failure to
state a claim if the appellant cannot obtain effective relief before the Board even
if her allegations are accepted as true. Young v. Federal Mediation and
Conciliation Service , 93 M.S.P.R. 99, ¶ 5 (2002), aff’d, 66 Fed. App’x 858
(Fed. Cir. 2003). In this case, the agency argued that, if the Board were to find
that the appellant’s Air Traffic Control Specialist position met the requirements
for ATC coverage, then the maximum separation age provisions of 5 U.S.C.
§ 8425(a) would also apply. I-2 AF, Tab 5 at 5. Applying those provisions, the
appellant’s age would preclude her from serving the minimum 20 years in her
position before reaching her mandatory separation date. Id. at 6. The agency
argues that, therefore, the appellant can present no set of facts in which she could
actually obtain an ATC retirement, and so her appeal should be dismissed for
failure to state a claim upon which relief can be granted. Id. at 7-8. The
administrative judge denied the agency’s motion, finding that the issue before her6
was the retirement system in which the appellant should be placed—not whether
she is ultimately entitled to receive an ATC annuity. I-2 AF, Tab 10 at 1-2. The
agency contests this ruling on review. PFR File, Tab 1 at 13-17.
We decline to revisit the administrative judge’s ruling because, whatever
the merits of the agency’s argument, the issue is now moot. According to the
agency, the appellant’s mandatory separation date would have been in April 2023,
but she would not have had 20 years of service as an Air Traffic Control
Specialist until 3 months later—July 14, 2023. PFR File, Tab 1 at 16. Both of
those dates have now passed. Therefore, the appellant now has more than
20 years of service in her position, regardless of whether she should have, in
hindsight, been separated before she reached that mark. In other words, even
assuming that the agency should have separated the appellant from service in
April 2023, the agency did not do so, and the appellant’s age is no longer a bar to
her earning an ATC annuity.
The appellant’s Air Traffic Control Specialist position meets the requirements for
air traffic controller special retirement coverage.
For purposes of special retirement coverage, an ATC is “a civilian
employee of the Department of Transportation or the Department of Defense in an
air traffic control facility or flight service station facility who is actively engaged
in the separation and control of air traffic or in providing preflight, inflight, or
airport advisory service to aircraft operators.” 5 U.S.C. §§ 2109(1), 8401(35);
5 C.F.R. § 842.802. The agency denied the appellant’s request for ATC
coverage, finding that the “primary duties” of her position were not to engage in
the separation and control of aircraft but to “plan, establish, and conduct a
continuing training and proficiency development program for the local ATC
facility.” IAF, Tab 13 at 21-22, 61-63. According to the agency, to meet the
“actively engaged” requirement of the statute, Department of Defense (DOD)
components require that an employee be actively engaged in separating and
controlling aircraft at least 25% of the time, whereas the appellant was actively7
engaged in separating and controlling aircraft only about 15% of the time.
Id. at 12-14.
In her initial decision, the administrative judge found that the agency’s
25% requirement had no support in the statute or the Office of Personnel
Management’s (OPM) implementing regulations. ID at 7. She found that,
although the statute required firefighters and law enforcement officers to perform
certain duties as their “primary duties” as a condition of special retirement
coverage, there was no such “primary duty” requirement for ATCs. Id. Because
it was undisputed that the appellant was actively engaged in the separation and
control of aircraft at least some of the time, even if was not her primary duty, the
administrative judge found that she was entitled to ATC special retirement
coverage. ID at 6-8.
On petition for review, the agency argues that the Department of the Navy,
the Department of the Army, and the Department of the Air Force all use the 25%
requirement for ATC special retirement coverage. PFR File, Tab 1 at 25.
It explains that, because the statutes and regulations do not specify what
percentage of time an employee must spend actively engaged in separating and
controlling aircraft, DOD looked to OPM’s classification standards for guidance.
Id. The classification standards provide that an employee’s duties are
“significant and substantial” when they occupy at least 25% of her time, and so
the agency adopted this as a reasonable threshold for ATC special retirement
coverage. Id.; IAF, Tab 10 at 26, Tab 13 at 62.
However, the question is not whether the 25% requirement is reasonable—
the question is whether it is lawful. For the reasons explained by the
administrative judge, we find that it is not. ID at 6-8. The agency does not seem
to have considered that the statutes and regulations are silent on the minimum
percentage of ATC duties required because there was no minimum percentage
intended. The plain language of the statute provides ATC retirement coverage for
employees who are actively engaged in the separation and control of aircraft—8
full stop. 5 U.S.C. §§ 2109(1)(A)(i); 8401(35), 8412(e). Unlike special
retirement for firefighter and law enforcement positions, there is no requirement
that such ATC duties be “primary,” “significant and substantial,” occupy a certain
percentage of the employee’s time, or anything of the sort. 5 U.S.C. § 8401(14)
(A)(i), (17)(A)(i); 5 C.F.R. § 842.802. Congress’s decision to omit a primary
duty requirement from its definition of ATC has every appearance of being
intentional in light of its decision to include such a requirement for firefighters
and law enforcement officers in the very same statute. “When Congress includes
particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Moulton v. Office of
Personnel Management , 2023 MSPB 26, ¶ 17 (citing Russello v. United States ,
464 U.S. 16, 23 (1983)); see Hyundai Steel Co. v. United States , 19 F.4th 1346,
1353 (Fed. Cir. 2021). This principle applies all the more strongly when
comparing provisions found in the same section of a statute.
DOD’s policy imposing a 25% time threshold is not a procedural
mechanism, a gap-filling measure, or a resolution of ambiguity. It is an
additional substantive requirement for ATC special retirement coverage that the
agency has added on top of the requirements already imposed by Congress. As a
result, the agency’s ATC special retirement coverage policy is contrary to the
law. See United States v. Picciotto , 875 F.2d 345, 348 (D.C. Cir. 1989) (holding
that a policy that adds a requirement not found in the relevant statute and
regulation is a substantive rule that is invalid unless it is promulgated with notice
and comment).2 The agency is attempting to make this case more complicated
than it is. It is undisputed that the appellant is actively engaged in ATC duties at
2 We note that OPM—not DOD or any DOD component—is the agency authorized to
prescribe regulations to carry out 5 U.S.C. chapter 84. 5 U.S.C. § 8461(g). The agency
has identified nothing in OPM’s regulations or guidance to support its position in this
case. In this regard, we observe that not even OPM has been authorized to create new
substantive requirements for ATC special retirement coverage.9
least some of the time. PFR File, Tab 1 at 26. Therefore, she meets the
definition of ATC for purposes of 5 U.S.C. § 8401(35). Because the appellant
meets this definition, she is entitled to special retirement coverage under 5 U.S.C.
§ 8412(e). No further analysis is required.
ORDER
We ORDER the agency to grant the appellant the appropriate amount of
ATC retirement credit. In connection with these awards, the appellant is
ORDERED to make appropriate arrangements with the agency to deposit into the
Civil Service Retirement and Disability Fund an amount to cover the higher
withholding rate that applies to aircraft controller positions.
We also ORDER the agency to tell the appellant promptly in writing when
it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. 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).
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. If10
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on12
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 14
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Simpson_Susan_L_AT-0842-18-0549-I-2_Final_Order.pdf | 2025-02-28 | SUSAN LYN SIMPSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-0842-18-0549-I-2, February 28, 2025 | AT-0842-18-0549-I-2 | NP |
78 | https://www.mspb.gov/decisions/nonprecedential/Barnes_Steven_R_SF-0752-23-0384-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN RAY BARNES,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-23-0384-I-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven Ray Barnes , Grapeview, Washington, pro se.
David Thayer , Esquire, Bremerton, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the agency’s demotion action. On petition for review, the agency argues
that it proved its charges of misconduct. 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).
ORDER
We ORDER the agency to cancel the appellant’s demotion and
retroactively restore him to the position of WS-4102-09 Painter Supervisor I,
effective May 21, 2023. See Kerr v. National Endowment for the Arts , 726 F.2d
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, 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.2
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
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.3
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. | Barnes_Steven_R_SF-0752-23-0384-I-1_Final_Order.pdf | 2025-02-28 | STEVEN RAY BARNES v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-23-0384-I-1, February 28, 2025 | SF-0752-23-0384-I-1 | NP |
79 | https://www.mspb.gov/decisions/nonprecedential/Milton_MarcusSF-1221-22-0584-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARCUS MILTON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-22-0584-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heather White , Esquire, Alysa Williams , Esquire, and Kathryn Black ,
Esquire, Washington, D.C., for the appellant.
Mickel-Ange Eveillard , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review. We AFFIRM the initial decision to the extent it found that the appellant
did not prove that he made protected disclosures under 5 U.S.C. § 2302(b)(8).
However, we VACATE the administrative judge’s finding that the appellant did
not prove that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C),
but still DENY the appellant’s request for corrective action.
BACKGROUND
The appellant is a Registered Nurse at the Long Beach VA Medical Center.
Initial Appeal File (IAF), Tab 1 at 1, Tab 36 at 382. On March 14, 2022, the
appellant sent an email to several agency executives and employees titled
“Racism and deplorable conditions in the Long Beach VA ER [Emergency
Department (ED)],” with an attached letter signed by the appellant and three other
Black employees discussing their concerns about a lack of diversity in staffing in
the ED and a “systemic culture” of racism, retaliation, and retribution driven by
ED manager Sailor. IAF, Tab 1 at 18, 31-34. The appellant sent a follow-up
letter the next day with additional complaints, “on behalf of the Black staff
supervised” by Sailor. Id. at 17. The agency subsequently assigned a single
factfinder to look into the matter, but, after initial investigation, the Medical
Center Director authorized an Administrative Investigations Board (AIB) to
conduct a “broader investigation” into allegations of a hostile work environment
in the ED due to “the large scope and complexity of the issues.” IAF, Tab 28 at
51, 58, Tab 35 at 56, Tab 41 at 4-6.
The AIB panel interviewed the appellant on May 16, 2022, and the
appellant testified, among other things, that the culture of the ED was
“segregated, racist, volatile” and cliquish, and that he believed he had an
unfounded reputation of being loud or inappropriate with patients fostered
primarily by white women. IAF, Tab 36 at 383, 400. In the morning on May 19,
2022, the AIB notified agency leadership that, after interviewing several ED staff2
members, there had been “numerous credible, serious allegations” of the
appellant’s “repeated inappropriate, offensive behavior towards patients” as well
as ED staff and that it was going to interview the appellant a second time about
these allegations. IAF, Tab 28 at 18-19. The AIB stated that a “vast majority of
staff reporting incidents fear retaliation and being labeled racist for coming
forward,” and that it was “conceivable” that the appellant could identify those
who testified against him, and it thus recommended that the appellant be
immediately detailed outside of the ED area and “not engage in further patient
care” until the allegations could be investigated. Id. at 19. The AIB interviewed
the appellant a second time that afternoon and, immediately following his
interview, the agency placed him on administrative leave until May 25, 2022, and
then detailed him out of the ED. IAF, Tab 1 at 35, Tab 36 at 444-91, Tab 41 at 6.
The AIB eventually issued a report on September 12, 2022, concluding that the
ED does not have a culture of racism and/or discrimination, but that there is an
unhealthy work environment and culture of fear that Sailor, the appellant, and two
other individuals were “most responsible for,” and recommending, among several
things, that the appellant be “immediately removed from his position in the [ED]
and that subsequent disciplinary action be pursued up to potential termination.”
IAF, Tab 35 at 64-88.
On June 16, 2022, before the report was issued, the appellant filed a
complaint with the Office of Special Counsel (OSC) repeating many of the claims
he made in his emails to the agency and before the AIB, discussing an Equal
Employment Opportunity (EEO) complaint he filed against Sailor, and claiming
that he was being detailed because of his testimony to the AIB, with a pay cut and
no explanation of the accusations. IAF, Tab 1 at 20-30. On July 8, 2022, OSC
closed out the appellant’s case and informed him of how to file an IRA appeal
with the Board. IAF, Tab 5. The instant, timely Board appeal followed. IAF,
Tab 1. During the prehearing process, the administrative judge issued an order
finding that the appellant nonfrivolously alleged that he made two specific3
protected disclosures under 5 U.S.C. § 2302(b)(8) and engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C), and that the alleged protected
disclosures and activity were a contributing factor in a personnel action as
defined by 5 U.S.C. § 2302(a)(2), and thus that the Board had jurisdiction over
his appeal. IAF, Tab 10. The administrative judge explicitly found that the
appellant did not establish jurisdiction over any remaining alleged protected
disclosures, including his allegations that the agency retaliated against him for
engaging in protected EEO activity and for alleging that his workplace was
permeated with racism. Id. at 7-8. The appellant later withdrew his request for a
hearing and the administrative judge subsequently issued an initial decision based
on the written submissions, denying corrective action. IAF, Tab 48, Initial
Decision (ID) at 1-2.
In the initial decision, the administrative judge first concluded that the
appellant did not prove by preponderant evidence that he made protected
disclosures under 5 U.S.C. § 2302(b)(8). ID at 10-14. The administrative judge
explained that disclosure 1 concerned the appellant’s reports of Sailor’s bullying
and harassment in his emails to management on March 14-15, 2022, and that
disclosure 2 concerned the appellant’s reporting that Sailor failed to investigate
an employee’s complaint that a male nurse touched her in an inappropriate and
threatening manner in his emails to management on March 14-15, 2022. ID at 12-
13; see also IAF, Tab 10 at 4. The administrative judge found that the appellant
did not prove that he disclosed an abuse of authority or that he reasonably
believed that he was reporting a violation of a law, rule or regulation,
respectively. ID at 12-14. The administrative judge also concluded that the
appellant did not prove that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C) when he testified before the AIB because the appellant’s
testimony was entirely focused on racism as part of the general hospital culture
and his allegation that Sailor retaliated against him for filing an EEO complaint.
ID at 14-15. The administrative judge noted that she did not find any “clear legal4
authority” to support a conclusion that such testimony is independently protected
under § 2302(b)(9)(C). ID at 15. The administrative judge thus concluded that
the appellant did not prove by preponderant evidence that he made a protected
disclosure or otherwise engaged in protected activity authorized by statute, and
she therefore denied corrective action. ID at 15-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. On review, he argues that he made several non-EEO protected
disclosures to the AIB, that his testimony before the AIB was protected activity,
that he suffered a covered personnel action, and that he proved that his alleged
protected disclosures and activity were a contributing factor in his detail. Id.
The agency filed a response, and the appellant filed a reply. PFR File, Tabs 3, 4.
OSC filed an amicus brief offering its views on the protected activity issue,
urging the Board to grant the appellant’s petition for review and find that the
administrative judge erred in analyzing the content of the appellant’s testimony to
the AIB instead of focusing on the protected activity of his cooperation with the
AIB. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The parties have not disputed the administrative judge’s finding of Board
jurisdiction, and we see no reason to disturb it. IAF, Tab 10; ID at 1. To prevail
on the merits of an IRA appeal, an appellant must meet his initial burden of
proving by preponderant evidence 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),2 (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). Karnes v.
Department of Justice , 2023 MSPB 12, ¶ 8. If the appellant makes out a prima
2 Under 5 U.S.C. § 2302(b)(9)(A)(i), it is a protected activity to exercise “any appeal,
complaint, or grievance right granted by any law, rule, or regulation . . . with regard to
remedying a violation of [5 U.S.C. § 2302(b)(8)].”5
facie case, then the agency is given an opportunity to prove by clear and
convincing evidence that it would have taken the same personnel action in the
absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu v. Department
of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015).
The administrative judge correctly found that the appellant did not prove that he
made protected disclosures under 5 U.S.C. § 2302(b)(8).
On review, the appellant briefly reasserts that disclosures 1 and 2,
regarding his March 2022 emails to agency management disclosing racist staffing
decisions and the physical assault of an employee, are protected disclosures. PFR
File, Tab 1 at 24-25. To establish that he made a protected disclosure, the
appellant must demonstrate by preponderant evidence that he disclosed
information that he reasonably believed evidenced a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial or specific danger to public health or safety. 5 U.S.C. § 2308(b)
(8); Mithen v. Department of Veterans Affairs , 119 M.S.P.R. 215, ¶ 13 (2013). In
the initial decision, the administrative judge thoroughly explained that she found
these communications not protected under 5 U.S.C. § 2302(b)(8) because, among
other things, the appellant did not show that he reasonably believed particular
examples of Sailor’s alleged bullying evidenced an abuse of authority, and
because he did not reasonably believe he was reporting a violation of law, rule, or
regulation in alleging that Sailor failed to investigate a physical assault in the
workplace. ID at 12-14. In his petition, the appellant does not claim that the
administrative judge erred in her analysis; he instead simply reasserts his
arguments from below. PFR File, Tab 1 at 20, 24-25. We thus see no reason to
disturb the administrative judge’s findings. See Yang v. U.S. Postal Service ,
115 M.S.P.R. 112, ¶ 12 (2010) (arguments that constitute mere disagreement with
the initial decision do not provide a basis to grant the petition for review); Crosby
v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,6
drew appropriate inferences, and made reasoned conclusions on issues of
credibility).
The appellant also alleges for the first time on review that he made several
protected disclosures in his testimony to the AIB. PFR File, Tab 1 at 18-24. For
example, he claims that he disclosed to the AIB that two ED nurses demanded he
illegally chart for a patient he did not treat, which would have resulted in a
potential violation of the Emergency Medical Treatment and Labor Act, id.
at 20-22, and that he disclosed that a doctor was being denied her statutorily
required military leave, id. at 23-24. However, the appellant did not raise these
alleged disclosures below before the administrative judge, despite being given an
explicit opportunity to do so. IAF, Tab 7 at 9-14, Tab 10 at 4-5, Tab 13 at 2,
Tab 43 at 35-37. Additionally, the appellant has not shown that he exhausted any
of these matters with OSC. ID at 10-11; IAF, Tab 1 at 20-30, Tab 5. Therefore,
we decline to consider these claims on review. See Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 10 (finding that the Board’s jurisdiction
over an IRA appeal is limited to matters an appellant raised with OSC (citation
omitted)); Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980)
(finding that an argument raised for the first time in a petition for review will not
be considered absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence).
The administrative judge erroneously concluded that the appellant did not prove
that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
Although we agree that the appellant failed to meet his burden concerning
his alleged protected disclosures under 5 U.S.C. § 2302(b)(8), we find that the
appellant did indeed meet his burden of showing that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). Specifically, under
5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity by
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the7
Special Counsel, in accordance with applicable provisions of law[.]” As
discussed above, here, the appellant cooperated with and disclosed information to
the AIB. However, in the initial decision, the administrative judge concluded that
the appellant’s appearance before the AIB was not protected activity under
section 2302(b)(9)(C) because the appellant’s AIB testimony “was focused
entirely on racism” in the ED and as a part of the general hospital culture, and
was thus outside the Board’s jurisdiction in the context of an IRA appeal. ID
at 15. She noted that she found “no clear legal authority to support a conclusion
that the sort of AIB testimony at issue in this IRA appeal is independently
protected under § 2302(b)(9)(C).” ID at 15.
We disagree. Under the broadly worded provision of 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
(emphasis added). The nature, or the content, of the disclosures to OIG or OSC
may be relevant at the merits stage of an IRA appeal, when the appellant must
prove the contributing factor element by preponderant evidence and the agency
must defend itself by providing clear and convincing evidence that it would have
taken the same personnel action absent the protected activity. Id., n.1. The fact
that the appellant’s testimony before the AIB implicated the protections of Title
VII does not preclude coverage under section 2302(b)(9)(C). Reese v.
Department of the Navy , 2025 MSPB 1, ¶ 46.
We thus turn to the question of whether the AIB constituted “any other
component responsible for internal investigation or review.” 5 U.S.C. § 2302(b)
(9)(C). In Reese, the Board clarified that the key question in determining whether
activity is protected under section 2302(b)(9)(C) is whether an appellant’s
activity was directed to a covered investigatory entity. Reese, 2025 MSPB 1,
¶ 48. The Board found that agency components as described in section 2302(b)
(9)(C) should have similar attributes and functions to those of the Offices of8
Inspector General, although such attributes may vary from agency to agency. Id.,
¶ 50. In general, such components will have a degree of independence and
objectivity, as well as the authority to investigate or review by taking testimony,
collecting evidence, and making findings and recommendations. Id. The Board
determined that the statutory language's reference to “any” component is broad
enough to encompass not just permanent agency components but also ad hoc
internal investigations or reviews conducted pursuant to an established agency
procedure. Id., ¶ 51.
Applying these principles, we find that the AIB is undoubtedly a
“component responsible for internal investigation or review” under 5 U.S.C.
§ 2302(b)(9)(C). As discussed above, the plain language of the statute provides
that an appellant need only “cooperat[e] with” or “disclos[e] information to” such
an entity for it to be covered as protected activity. 5 U.S.C. § 2302(b)(9)(C); see
also Fisher, 2023 MSPB 11, ¶ 8. Therefore, the appellant’s cooperation with the
AIB is protected activity regardless of the content of that cooperation.
Consequently, we find that the appellant proved by preponderant evidence that he
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C), and we vacate the
administrative judge’s finding to the contrary.
The appellant did not prove by preponderant evidence that his AIB testimony was
a contributing factor in the agency’s decision to detail him.
Having found that the appellant proved by preponderant evidence that his
testimony to the AIB was protected activity, we turn to the question of whether he
proved that this protected activity was a contributing factor in the agency’s
decision to detail him.3 To prove that a protected disclosure or activity was a
contributing factor in a personnel action, the appellant need only demonstrate that
the fact of, or the content of, the disclosure or activity was one of the factors that
tended to affect the personnel action in any way. See Covington v. Department of
3 Under 5 U.S.C. § 2302(a)(2)(A)(iv), a “personnel action” includes “a detail, transfer,
or reassignment.”9
the Interior, 2023 MSPB 5, ¶ 43. One way to establish contributing factor is the
knowledge/timing test. Smith v. Department of the Army , 2022 MSPB 4, ¶ 19.
The appellant can satisfy the test by proving that the official taking the action had
actual or constructive knowledge of the disclosure or activity, and the action
occurred within a period of time such that a reasonable person could conclude
that the disclosure or activity was a contributing factor in the personnel action.
Id. The knowledge portion of the knowledge/timing test can be met with
allegations of either actual or constructive knowledge. Abernathy v. Department
of the Army, 2022 MSPB 37, ¶ 15. However, the knowledge/timing test is not the
only way to prove contributing factor. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). The Board will also consider other evidence,
such as evidence pertaining to the strength or weakness of the agency’s reasons
for taking the personnel action, whether the whistleblowing was personally
directed towards the officials taking the action, and whether these individuals had
a desire or motive to retaliate against the appellant. Id., ¶ 15.
Here, the appellant alleges that his AIB testimony was a contributing factor
in the agency’s decision to detail him. IAF, Tab 7 at 15; PFR File, Tab 1
at 25-26. In particular, he claims that he was “told that he was being detailed out
of the ED because of his own [AIB] testimony, not that of other witnesses.” PFR
File, Tab 1 at 26; see also IAF, Tab 1 at 21. We are not convinced. As noted
above, the AIB recommended detailing the appellant out of the ED before he
testified to the AIB a second time. See IAF, 28 at 18-19. Although the AIB may
have been convened in response to the appellant’s March 2022 emails, and even
though it interviewed the appellant on May 16, 2022 in regard to those March
2022 allegations, the AIB’s May 19, 2022 email to agency management
recommending that the appellant be detailed out of the ED clearly explained that
its recommendation was due to other employee allegations against the appellant
discovered in the course of its investigation. See id. Specifically, the AIB stated
it had received “numerous credible, serious allegations concerning [the10
appellant’s] inappropriate behavior towards patients and staff,” and it discussed
several allegations including that the appellant had failed to communicate
patients’ worsening conditions and delayed in following doctors’ orders, used
profanity in front of patients, and called employees “white bitches.” Id. The
AIB’s recommendation email does not mention the appellant’s first AIB
testimony. Id. Furthermore, the appellant acknowledges in his complaint to OSC
that the agency notified him prior to his second AIB interview that it was going to
detail him from the ED. IAF, Tab 1 at 21.
Additionally, both the Medical Center Director and the Deputy Associate
Director for Patient Care Services, who chartered the AIB, declared in affidavits
that detailing an employee who is the subject of an investigation is standard
practice to protect the integrity of the investigation. IAF, Tab 41 at 4-13. Both
of these officials discussed that the AIB recommended detailing the appellant due
to patient safety concerns and concerns of inappropriate behavior towards other
staff, which we find are very serious issues requiring immediate action on the
party of the agency. Id. at 6, 11; see also IAF, Tab 28 at 63-91. To this end, the
AIB pointed out that it was “conceivable” the appellant could identify those who
testified against him, so he needed to be removed from the proximity of the ED,
which seems reasonable. IAF, Tab 28 at 19. The Medical Center Director
acknowledged that he supported the AIB’s recommendation to detail the appellant
since the AIB was “in the best position to make that recommendation based on
the evidence.” Id. at 6. And with regard to the AIB, both Directors declared in
their affidavits that the AIB was a neutral, unbiased panel. IAF, Tab 41 at 7, 10.
Furthermore, the allegations in the appellant’s March 2022 emails and his
May 16, 2022 AIB testimony centered around other agency employees—primarily
ED supervisor Sailor—and not the members of the AIB panel, which was only
convened after the appellant made his first allegations of a racist and retaliatory
culture within the ED. See IAF, Tab 1 at 31.11
Consequently, considering all of the evidence, we find that the appellant
has not proven that his protected activity—his testimony to the AIB—was a
contributing factor in the agency’s decision to detail him. Because we find that
the appellant failed to establish a prima facie case of whistleblower reprisal, it is
thus unnecessary to proceed to the clear and convincing test. See Scoggins v.
Department of the Army , 123 M.S.P.R. 592, ¶ 28 (2016).
We deny the appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.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. 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 | Milton_MarcusSF-1221-22-0584-W-1_Final_Order.pdf | 2025-02-28 | MARCUS MILTON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-22-0584-W-1, February 28, 2025 | SF-1221-22-0584-W-1 | NP |
80 | https://www.mspb.gov/decisions/nonprecedential/Northrup_AngelaNY-1221-23-0097-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA NORTHRUP,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-1221-23-0097-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan E. Wolin , Esquire, Jericho, New York, for the appellant.
Nelda Davis , Esquire, Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. We MODIFY the initial decision to find that an involuntary
resignation is cognizable in an IRA appeal, to conclude that disclosures 9 and 10
were also protected by 5 U.S.C. § 2302(b)(9)(C), and to discuss factors 2 and 3 as
set forth in Carr v. Social Security Administration , 185 F.3d 1318 (Fed. Cir.
1999). Except as expressly MODIFIED herein, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant does not challenge the administrative judge’s conclusion that
the relevant personnel actions included (1) a December 13, 2022 Proficiency
Report for the period October 24, 2021, to October 24, 2022, which contained an
overall unsatisfactory rating, (2) a December 20, 2022 letter advising that a
Professional Standards Board (PSB) would be convened to conduct a summary
review of her employment during her probationary period and to make
recommendations concerning her retention in or separation from the agency, and
(3) her termination during her probationary period, effective February 1, 2023.
Initial Appeal File (IAF), Tab 37, Initial Decision (ID) at 14. She also does not
challenge the administrative judge’s finding that her allegations of a derogatory
supervisory tone and her own resignation, effective January 20, 2023, did not2
constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A), and that these acts
combined with her other allegations did not rise to the level of a “significant
change in duties, responsibilities, or working conditions” pursuant to 5 U.S.C.
§ 2302(a)(2)(A)(xii).2 ID at 12-13. Moreover, the agency has not filed a cross
petition for review and does not otherwise challenge the administrative judge’s
findings on the appellant’s prima facie case. ID at 7-14. Accordingly, we affirm
the initial decision in this regard.
Although not raised by the appellant, we modify the initial decision to find
in the alternative that disclosures 9 and 10, involving her complaints to the Office
of Accountability and Whistleblower Protection (OAWP), constitute activity
protected by 5 U.S.C. § 2302(b)(9)(C), which states that an employee engages in
protected activity when she cooperates with or discloses information to an agency
component responsible for internal investigation or review in accordance with
applicable provisions of law. ID at 10-11; see 38 U.S.C. § 323(c)(1)(H)(iii)
(stating that OAWP is responsible for “[r]eceiving, reviewing, and investigating
allegations of misconduct, retaliation, or poor performance involving . . . a
supervisory employee, if the allegation involves retaliation against an employee
for making a whistleblower disclosure”). We now turn to the appellant’s
assertions on review.
2 The administrative judge erred when she found that an involuntary resignation claim
did not constitute a cognizable personnel action in an IRA appeal. ID at 13;
see Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 10 (2015); Colbert
v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 & n.5 (2014). However, the
administrative judge’s error is not material because the appellant did not prove that her
resignation was involuntary. See Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8
(2013) (explaining that an appellant can prove that her resignation was involuntary by
showing that she lacked a meaningful choice in the matter and the agency’s wrongful
actions deprived her of that choice); see also 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
the appellant’s substantive rights provides no basis for reversal of the initial decision ).
Moreover, as noted herein, the appellant does not raise this issue on review.3
We agree with the administrative judge that disclosures 1 and 6 do not constitute
disclosures that are protected by 5 U.S.C. § 2302(b)(8).
The appellant asserts that the administrative judge should have found that
disclosures 1 and 6 were protected by 5 U.S.C. § 2302(b)(8) because, among
other things, they could not be separated from disclosures 2, 9, and 10, which the
administrative judge found were protected. Petition For Review (PFR) File,
Tab 1 at 19-21; ID at 8-11. This argument is not persuasive.
Disclosure 1 described a July 18, 2022 letter that the appellant wrote to her
first-line supervisor and others, in which she explained, among other things, that
she did not have adequate time to serve as director of two programs, and she
recommended that the agency hire a full-time replacement for the Director of the
Post-Baccalaureate Registered Nurse Residency (PBRNR) Program so that she
could return to her primary role as the Director of the Registered Nurse
Transition to Practice (RNTTP) Program. ID at 8-9; IAF, Tab 1 at 90.
The administrative judge found that a reasonable person in the appellant’s
position would not have believed that her letter evidenced a gross waste of funds.
ID at 9. We discern no error with the administrative judge’s conclusion in this
regard. See, e.g., Webb v. Department of Interior , 122 M.S.P.R. 248, ¶ 10 n.3
(2015) (stating that an employee discloses a gross waste of funds when she
alleges that a more than debatable expenditure is significantly out of proportion
to the benefit reasonably expected to accrue to the Government).
Disclosure 6 described a September 19, 2022 email that the appellant sent
to her supervisor, in which she stated, among other things, that, because she was
administering two programs and there was no program coordinator, her lack of
communication was the result of her not having “enough time in the week.”
ID at 10; IAF, Tab 7 at 26. The appellant also requested in this email to
“‘unmerge’ the two residency positions because the amount of work required to
make them go smoothly is significant and even more so with the lack of a
program coordinator.” ID at 10; IAF, Tab 7 at 26. The administrative judge4
found that the appellant’s concerns did not constitute a violation of law, rule,
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health and safety. ID at 10.
Here, too, we discern no error with the administrative judge’s conclusion.
As the administrative judge noted, the basis for the appellant’s disclosures
involved her attempts to uncouple the two positions (RNTTP Director and
PBRNR Interim Director) in order to perform only the one position for which she
had applied, RNTTP Director. ID at 3. Although the appellant’s disclosures may
have involved the same general issues and/or concerns, they did not involve the
same verbiage or allegations and were not sent to the same recipients. For these
reasons, we discern no error with the administrative judge’s analysis, as modified
herein, or her specific finding that disclosures 1 and 6 were not protected.
We agree with the administrative judge that the appellant is not entitled to
corrective action.
We next turn to the question of whether the agency proved by clear and
convincing evidence3 that it would have separated the appellant absent her
protected activity. In determining whether an agency has met its burden, the
Board will consider all relevant factors, including the following: (1) the strength
of the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who do not engage in such protected activity, but who are otherwise
similarly situated. Carr, 185 F.3d at 1323. The Board does not view the Carr
factors as discrete elements, each of which the agency must prove by clear and
convincing evidence but rather weighs these factors together to determine
3 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e). 5
whether the evidence is clear and convincing as a whole. Soto v. Department of
Veterans Affairs , 2022 MSPB 6, ¶ 13.
The initial decision reflects the administrative judge’s consideration of the
evidence relating to Carr factor 1. ID at 15-20. In Smith v. General Services
Administration, 930 F.3d 1359, 1365 (Fed. Cir. 2019), the court clarified that the
issue was not whether the action or discipline was “justified,” but whether agency
“would have acted in the same way absent the whistleblowing.” In the initial
decision, the administrative judge reviewed the relevant evidence and found that
the agency proved by clear and convincing evidence that it would have issued the
unsatisfactory Proficiency Report, referred the appellant to the PSB and convened
the PSB, and terminated her absent her whistleblowing disclosures and activity.
ID at 15-20.
On review, the appellant contends that the administrative judge erred
because “most, if not all, of the examples that [her supervisor] gave to ‘justify’
the rating occurred after [the appellant] began making her disclosures,” the
examples were largely based on the PBRNR position, not the RNTTP position,
the Proficiency Report should be compared to the proficiency report that the
appellant prepared and her rebuttal, which “more accurately reflected [the
appellant’s] true job performance,” and all of the actions that followed flowed
from the Proficiency Report. PFR File, Tab 1 at 21 (emphasis in original). These
assertions do not warrant a different outcome.
Importantly, the initial decision reflects that the administrative judge
reviewed the Proficiency Report and the appellant’s “lengthy contemporaneous
rebuttal,” and she discussed some of the specific differences between the
Proficiency Report and the rebuttal. ID at 16-17. After reviewing the rebuttal
and the entire record, the administrative judge concluded that the Proficiency
Report was not “inaccurate” and that the evidence supports the supervisor’s
testimony that there was nothing improper about the appellant’s work
assignments. ID at 17. The administrative judge further found that the PSB and6
the deciding official “were ultimately fully informed of the issue, and did not
view it as a basis to change the assignments or reconsider the termination.” Id.
The appellant’s argument does not persuade us that the administrative judge erred
in her analysis of Carr factor 1 or her implicit conclusion that this factor favors
the agency.
The administrative judge did not explicitly discuss Carr factors 2 and 3 in
the initial decision. Although the appellant does not raise this issue on review,
we modify the initial decision to explicitly consider these factors.
Regarding Carr factor 2, the record reflects that disclosure 2—which
asserted, among other things, that the agency’s actions violated VA Directive
1077—was sent directly to the appellant’s supervisor, who issued the Proficiency
Report. Thus, the supervisor could have a motive to retaliate. See, e.g., Russell
v. Department of Justice , 76 M.S.P.R. 317, 326 (1997) (finding that the officials
involved had a strong motive to retaliate because, in part, they were the subjects
of the whistleblowing disclosures). The appellant advised the PSB that the
agency’s decision to merge the positions “was inappropriate and violative of
relevant rules and regulations” and that she communicated with “OAWP,
[the Office of Personnel Management], [and the Office of Special Counsel]”
about the propriety of the agency’s decision. IAF, Tab 1 at 132-43.
The members of the PSB and the deciding official were not involved in any
decisions regarding her work assignments; thus, the appellant’s disclosures did
not directly implicate them. However, precedent from the U.S. Court of Appeals
for the Federal Circuit instructs that, in assessing this factor, the Board should
fully consider whether a motive to retaliate can be imputed to the agency officials
involved and whether those officials possessed a “professional retaliatory
motive,” because the whistleblower’s disclosures implicated agency officials and
employees in general. Soto, 2022 MSPB 6, ¶ 15 (internal citations omitted).
Under these circumstances, we find that there could be some professional motive
to retaliate. We conclude that any professional motive to retaliate on the part of7
the deciding official is vanishingly low because she testified that she gave “very
significant weight” to the PSB’s recommendations because they are the “subject
matter experts,” and she has never dissented from a PSB recommendation.
IAF, Tab 29 (testimony of the deciding official). Therefore, we find that this
factor slightly weighs in the appellant’s favor.
Regarding Carr factor 3, as noted above, the deciding official testified that
she never dissented from the PSB recommendations. Id. However, the agency
did not offer any evidence as to whether the other individuals who went before
the PSB were non-whistleblowers and/or had similar allegations against them.
See Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir.
2018) (noting that the “precise inquiry” in Carr factor 3 involves the “agency’s
treatment of non-whistleblower employees accused of similar misconduct”). The
agency acknowledges in its response to the petition for review that the appellant’s
supervisor did not testify that she rated other nurses as unsatisfactory, but she
was still in her first year as a manager. PFR File, Tab 3 at 19. Ultimately,
because the agency did not provide evidence responsive to this Carr factor, we
conclude that this factor does not weigh in the agency’s favor. See, e.g., Siler,
908 F.3d at 1299 (“[In the] absence of relevant comparator evidence, the third
Carr factor cannot favor the government.”); Miller v. Department of Justice ,
842 F.3d 1252, 1262 (Fed. Cir. 2016) (“[T]he court may not simply guess what
might happen absent whistleblowing. The burden lies with the Government.”).
Based on the parties’ petition for review submissions and our evaluation of
the Carr factors, we find that the agency proved by clear and convincing evidence
that it would have taken the personnel actions in question absent the appellant’s
whistleblowing disclosures and/or protected activity. Accordingly,
notwithstanding our modifications to the initial decision, we agree with the
administrative judge’s decision to deny the appellant’s request for corrective
action. 8
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.9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any10
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s11
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Northrup_AngelaNY-1221-23-0097-W-1_Final_Order.pdf | 2025-02-28 | ANGELA NORTHRUP v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-23-0097-W-1, February 28, 2025 | NY-1221-23-0097-W-1 | NP |
81 | https://www.mspb.gov/decisions/nonprecedential/Patel_Nathan_T_CH-1221-22-0149-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. NATHAN T. PATEL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-22-0149-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nathan T. Patel , Barrington, Rhode Island, pro se.
Kimberly Huhta , Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman 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 for lack of jurisdiction the appellant’s individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis of the appellant’s disclosures and
to address new evidence raised on review, we AFFIRM the initial decision.
BACKGROUND
Since March 2021, the appellant worked as a Physician at the agency’s
Cincinnati Veterans Affairs Medical Center (VAMC). Initial Appeal File (IAF),
Tab 7 at 9-10. Between June 2021 and December 2021, he repeatedly informed
his supervisors that a Nurse Practitioner (NP) in his office did not see patients she
was allegedly assigned, improperly delegated work to others, and performed
deficiently. Id. at 28-41. The appellant said he had serious concerns about the
NP’s ability to practice medicine and requested her removal from the Employee
Health Department. Id. On December 17, 2021, the appellant’s supervisor
notified him that he was under investigation for allegedly subjecting the NP to a
hostile work environment, ordered the appellant not to contact or communicate
with her, and temporarily relocated him to another office within the VAMC where
he alleges he was unable to perform his job duties. Id. at 13, 44-46.2
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging retaliation for protected disclosures based on the temporary relocation,
investigation, and impediments to his ability to perform his job duties. Id.
at 12-23, 27. OSC closed its investigation and informed the appellant of his
appeal rights with the Board. Id. at 4. The appellant timely filed this appeal
alleging that the agency retaliated against him for reporting that the NP was a
substantial and specific danger to public health and safety. IAF, Tab 1 at 6. The
administrative judge issued an Order on Jurisdiction in which she properly
informed the appellant of his burden to establish Board jurisdiction over his IRA
appeal. IAF, Tab 3. In response, the appellant submitted a copy of his complaint
to OSC with attachments, which included several emails to colleagues and
supervisors raising his concerns about the NP’s performance as well as the
December 17, 2021 notice. IAF, Tab 7 at 4-46.
The administrative judge dismissed the appeal for lack of jurisdiction
without holding the appellant’s requested hearing. IAF, Tab 1 at 2, Tab 12,
Initial Decision (ID) at 1, 10-11. She found that the appellant exhausted his
administrative remedies with OSC, but his disclosures were not protected under
5 U.S.C. § 2302(b)(8). ID at 6-10. Specifically, she held that the appellant’s
disclosures did not evidence a substantial and specific danger to public health or
safety, gross mismanagement, gross waste of funds, or a violation of law, rule, or
regulation. ID at 7-10. Regarding public health or safety, she reasoned that the
appellant did not state the NP’s actions were likely to create any imminent danger
or harm for patients. ID at 8-9. She reasoned that he failed to show his
disclosures concerned gross mismanagement because he merely complained about
“the performance, attitude and conduct of a single employee” but did not allege
facts that would show her performance had a significant adverse impact on the
agency’s ability to accomplish its mission. ID at 9. She further reasoned that the
appellant’s complaint that the NP performed the work of a registered nurse, a
position with a salary substantially lower than an NP’s, did not constitute a gross3
waste of funds. Id. Finally, she reasoned that the appellant did not reveal a
violation of law, rule, or regulation when he disclosed that the NP was not
performing examinations required by her position description, which the
administrative judge characterized as “nothing more than a squabble about the
distribution of labor in his department.” ID at 9-10.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. On review, the appellant states only that on
March 10, 2022, before the administrative judge issued her initial decision, the
agency proposed an unspecified personnel action against the appellant. PFR File,
Tabs 1, 2. The agency has not responded.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over an IRA appeal, an appellant must show
that he exhausted his administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3),
1221; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
Although the administrative judge correctly stated that the appellant was
required to make a nonfrivolous allegation that he reasonably believed his
disclosures evidence one of the circumstances described in 5 U.S.C. § 2302(b)(8),
it does not appear that she analyzed his claims under that standard. ID at 7-10.
Protected whistleblowing occurs when an appellant makes a disclosure that he
reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶ 52. The proper test for4
determining whether an employee had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the
essential facts known to, and readily ascertainable by, the employee could
reasonably conclude that the actions evidenced a violation of a law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
Pridgen, 2022 MSPB 31, ¶ 52.
The administrative judge’s error was harmless because she implicitly found
that a disinterested observer with knowledge of the essential facts known to, and
readily ascertainable by, the appellant could not reasonably conclude that the
agency’s actions evidence one of the circumstances described in 5 U.S.C.
§ 2302(b)(8). See id., ¶ 56. The administrative judge properly found that the
appellant’s disclosures that the NP steered patients to the appellant, refused to
conduct preemployment exams, and delegated administrative tasks and research
projects did not constitute a substantial and specific danger to public health or
safety because he did not allege that any patient failed to receive timely or
appropriate care or would be put at risk of imminent harm due to the NP’s
actions. ID at 7-9; see Parikh v. Department of Veterans Affairs , 116 M.S.P.R.
197, ¶¶ 15-17 (2011) (finding a physician reasonably believed a coworker’s
actions endangered a patient’s life when he disclosed specific instances of
misdiagnoses and delays in treatment for which he identified specific, potentially
life-threatening consequences and at least one patient’s condition deteriorated to
the point he had to be intubated). Nor could the appellant’s complaint that the
NP’s salary did not accurately reflect the duties she performed reasonably
constitute a gross waste of funds. Mc Corcle v. Department of Agriculture ,
98 M.S.P.R. 363, ¶ 23 (2005) (“A ‘gross waste of funds’ is defined as more than
merely a debatable expenditure that is significantly out of proportion to the
benefit reasonably expected to accrue to the government.”), overruled on other
grounds by Collier v. Small Business Administration , 2024 MSPB 13, ¶¶ 1, 7.
Finally, the administrative judge correctly found that the appellant failed to5
identify any law, rule, or regulation that the NP violated by purportedly not
performing her job duties. ID at 9-10. Rather, as the administrative judge
reasoned, a position description is not a rule for purposes of 5 U.S.C.
§ 2302(b)(8). Thus, we modify the initial decision to explicitly find that the
appellant failed to establish he had a reasonable belief that his disclosures were
protected.
The administrative judge appears to have misconstrued the appellant’s
gross mismanagement allegation as a complaint about the NP’s performance,
attitude, and conduct. ID at 9. However, the appellant’s complaint to OSC
reflects that his allegation of gross mismanagement concerns management’s
failure to hold the NP accountable for what he perceived as her inadequacies.
IAF, Tab 7 at 14, 27, 38. Gross mismanagement is a management action or
inaction that creates a substantial risk of significant adverse impact on the
agency’s ability to accomplish its mission. See Francis v. Department of the Air
Force, 120 M.S.P.R. 138, ¶ 12 (2013). Mere disagreement over the assignment of
job duties and responsibilities is insufficient for finding a protected disclosure
under the Whistleblower Protection Act. Mc Corcle, 98 M.S.P.R. 363, ¶ 22.
There is no indication that the NP’s alleged deficiencies had anything more than a
de minimis impact on the agency’s ability to accomplish its mission. Therefore,
we find that he failed to nonfrivolously allege that a disinterested observer could
reasonably believe that the agency’s inaction constituted gross mismanagement.
The appellant’s OSC complaint states that he disclosed an abuse of
authority. IAF, Tab 7 at 20. The administrative judge did not address any
alleged abuse of authority disclosure in her initial decision. However, we find
that she did not err in this omission. Specifically, the appellant said that he was
asked to perform work in a different location without equipment necessary to
perform his job duties, that the agency had an employee spy on him, and that the
agency did not take two Reports of Contact seriously . Id. The change in work
location and assignment of an employee to spy on the appellant are arguably6
personnel actions, not disclosures. The two Reports of Contact are disclosures,
but the appellant states only that they were not taken seriously; he does not say
what they contained, and, unlike his other disclosures, he did not submit copies of
the reports. Thus, the appellant failed to make a nonfrivolous allegation that he
disclosed an abuse of authority, and the administrative judge’s failure to address
this issue did not prejudice his substantive rights.
On review, the appellant claims that he received a proposed personnel
action on March 10, 2022, which was over 2 weeks before the administrative
judge issued her initial decision. PFR File, Tabs 1, 2. The appellant has not
shown that he exhausted this claim with OSC, which he is required to do before
seeking corrective action from the Board. 5 U.S.C. § 1214(a)(3). However, once
he has done so, he may file a new IRA appeal with the Board.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you8
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 9
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Patel_Nathan_T_CH-1221-22-0149-W-1_Final_Order.pdf | 2025-02-28 | DR. NATHAN T. PATEL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-22-0149-W-1, February 28, 2025 | CH-1221-22-0149-W-1 | NP |
82 | https://www.mspb.gov/decisions/nonprecedential/Ferguson_MonicaSF-1221-21-0141-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MONICA FERGUSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-1221-21-0141-W-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.
Theodore M. Miller , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. On
petition for review, the appellant argues that the administrative judge ignored her
six alleged protected disclosures, which she contends disclosed a substantial and
specific danger to public health or safety. Generally, we grant petitions such as
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 with respect to the appellant’s equal employment opportunity (EEO)
activity, we AFFIRM the initial decision.
The appellant alleged before the Office of Special Counsel that the agency
retaliated against her for filing an EEO complaint. Initial Appeal File (IAF),
Tab 1 at 46, 52-53. The administrative judge found that the appellant’s EEO
complaint was excluded from protection under the Whistleblower Protection Act
as amended. IAF, Tab 18, Initial Decision at 11. However, after the initial
decision was issued, the Board issued a precedential decision finding that EEO
activity may be protected under 5 U.S.C. § 2302(b)(9)(C) and fall within the
Board’s whistleblower jurisdiction on that basis. Holman v. Department of the
Army, 2025 MSPB 2, ¶ 13. Nevertheless, in response to the administrative2
judge’s jurisdictional order, the appellant did not indicate that she was pursuing
corrective action based on retaliation for her EEO complaint. IAF, Tab 7 at 5.
Nor has the appellant given sufficient information for the Board to infer that her
EEO activity may have been a contributing factor in any of the claimed personnel
actions. See generally Salerno v. Department of the Interior , 123 M.S.P.R. 230,
¶ 5 (2016) (setting forth the jurisdictional elements of an IRA appeal). For these
reasons, we find that the appellant’s prior EEO activity is not properly before the
Board in the context of the instant IRA appeal.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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 | Ferguson_MonicaSF-1221-21-0141-W-1_Final_Order.pdf | 2025-02-28 | MONICA FERGUSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-1221-21-0141-W-1, February 28, 2025 | SF-1221-21-0141-W-1 | NP |
83 | https://www.mspb.gov/decisions/nonprecedential/Auguste_FredericPH-1221-19-0235-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERIC AUGUSTE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-19-0235-W-1
DATE: February 28, 2025
THIS ORDER IS NONPRECEDENTIAL1
Frederic Auguste , Windsor, Vermont, pro se.
Joshua Carver , Esquire, Augusta, Maine, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman 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 Board
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
jurisdiction. For the reasons discussed below, we GRANT the appellant’s
petition for review and REMAND the case to the Northeastern Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
The agency terminated the appellant from his position as a Supervisory
Medical Supply Technician due to unacceptable conduct and performance in
March 2019. Initial Appeal File, Tab 6 at 23-24. The appellant sought corrective
action from the Office of Special Counsel (OSC), alleging that his termination
was in reprisal for making disclosures to the agency’s ethics committee. IAF,
Tab 1 at 11. OSC subsequently informed him that it had closed its investigation
into his allegations, and that he may have the right to seek corrective action from
the Board. Id.
The appellant filed a Board appeal, alleging that he was terminated shortly
after he made various disclosures to the agency’s “Ethics point of contact,” which
were also shared with the “Equal Opportunity/Resolution Mgmt point of contact.”
Id. at 7. The administrative judge issued an order setting forth the appellant’s
burden to establish jurisdiction over his IRA appeal. IAF, Tab 10.
The appellant responded, alleging that he disclosed to the ethics department
management’s failure or refusal “to investigate or correct issues” as required by
the agency’s handbook at 5021/15 Appendix A. IAF, Tab 11 at 6. He further
alleged that he reported to the ethics department that agency officials had
engaged in gross mismanagement by giving another employee favorable treatment
and by generally not requiring her to perform her duties. Id. at 7. The appellant
originally requested a hearing, but subsequently withdrew his request. IAF,
Tab 13 at 4.
The administrative judge issued an initial decision dismissing the IRA
appeal for lack of Board jurisdiction. IAF, Tab 14, Initial Decision (ID) at 1. He
found that the appellant had sufficiently exhausted his OSC remedies. ID at 5.2
The administrative judge held that the VA handbook, which the appellant alleged
he disclosed a violation of, did not require any obligation on agency management
to take specified action or charge individuals with any stated offense, and thus,
the appellant failed to nonfrivolously allege that his report of management’s
inaction violated the handbook. ID at 6-7. The administrative judge next found
that the appellant’s disclosures that a coworker was treated favorably, and
management’s failure to take formal disciplinary action against her, did not
amount to a nonfrivolous allegation of a protected disclosure. Id. Finally, the
administrative judge found that, to the extent the appellant alleged his
communications with the ethics department included other protected disclosures,
he failed to demonstrate that he reasonably believed these communications
evidenced any of the protected categories set forth in 5 U.S.C. § 2302(b)(8). ID
at 7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has responded, and the appellant has replied to its
response. PFR File, Tabs 4, 5. The appellant attaches various documents to his
petition, including a performance review and the OSC closeout letter.2 PFR File,
Tab 2 at 10-15.
The appellant has also requested to update his address “with the Board, but
not the agency,” claiming disclosure of his new address would “compromise both
his safety and privacy.” PFR File, Tab 6 at 4. The agency has not responded to
this request. The appellant has provided no justification or support for his
assertion regarding safety and privacy. Moreover, the appellant is an e-filer, and
thus far the agency has elected to serve him electronically rather than at his
2 Because the issue of Board jurisdiction may be raised at any time during a proceeding,
we consider these new documents on review to the extent they implicate the Board’s
jurisdiction. See Sonneborn v. Department of Defense , 80 M.S.P.R. 215, ¶ 4 (1998)
(finding that the Board will consider documents submitted for the first time on review,
even if the submitting party does not establish that they were previously unavailable, if
the documents implicate the Board’s jurisdiction).3
physical address . IAF, Tab 1 at 2; see 5 C.F.R. 1201.14(m)(2) (explaining that
documents served electronically on registered e-filers are deemed received on the
date of electronic submission).3 Accordingly, we deny his request.
DISCUSSION OF ARGUMENTS ON REVIEW
The first element of Board jurisdiction over an IRA appeal is exhaustion by
the appellant of his administrative remedies before OSC. Carney v. Department
of Veterans Affairs , 121 M.S.P.R. 446, ¶ 4 (2014). In the instant case, the
administrative judge found that the appellant exhausted his administrative
remedies before OSC regarding the claim that the agency terminated him during
his probationary period for making disclosures to the agency’s ethics committee.
ID at 5. The parties do not challenge this finding on review, and we discern no
error in the administrative judge’s finding.
Following the establishment of exhaustion before OSC, the Board has
jurisdiction over an IRA appeal if the appellant nonfrivolously alleges the
following: (1) he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take a personnel action against him.4 Graves v. Department
of Veterans Affairs , 123 M.S.P.R. 434, ¶ 12 (2016).
3 Although the appellant is responsible for keeping the agency informed of his home
address, the Board’s regulations recognize that he may use a post office box. 5 C.F.R.
§ 1201.22(b)(3).
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 7 (2016). An allegation
generally will be considered nonfrivolous when, under oath or penalty of perjury, an
individual makes an allegation that is more than conclusory, plausible on its face, and
material to the legal issues in the appeal. Id. (citing 5 C.F.R. § 1201.4(s)).4
The administrative judge properly found that the appellant failed to
nonfrivolously allege a protected disclosure under 5 U.S.C. § 2302(b)(8).
Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences a violation of a law, rule, or regulation, gross
mismanagement, a gross waste of funds, and abuse of authority, or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8); Francis v.
Department of the Air Force , 120 M.S.P.R. 138, ¶ 10 (2013). The proper test for
determining whether an appellant had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the
essential facts known to and readily available by the appellant could reasonably
conclude that the actions evidenced a violation of a law, rule, or regulation, or
one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Francis,
120 M.S.P.R. 138, ¶ 10.
As previously noted, the appellant below alleged that he reported to the
ethics department management’s failure or refusal “to investigate or correct
issues” as required by the VA Handbook 5021/15 Appendix A. IAF, Tab 11 at 6.
The administrative judge found that the handbook cited was merely the agency’s
table of penalties for stated offenses, and that it did not require any obligation on
agency management to take specified action or charge individuals with any stated
offense. ID at 6. Accordingly, the administrative judge found that the appellant
failed to nonfrivolously allege that his report of management’s inaction violated
the handbook or otherwise amounted to a violation of a law, rule, or regulation
under 5 U.S.C. § 2302(b)(8). Id. The appellant does not challenge this finding
on review, and we discern no basis for disturbing it. Specifically, we agree that
the handbook did not require any obligation on agency management to take
specified action, and that the appellant therefore failed to nonfrivolously allege
that he had a reasonable belief that management’s inaction was a violation of the
handbook. See Francis, 120 M.S.P.R. 138, ¶ 11 (finding that an appellant failed
to nonfrivolously allege that she reasonably believed that her disclosure5
evidenced a violation of training rules when none of the laws, rules, or
regulations cited prescribed a methodology for maintaining training records).
The appellant further alleged that he disclosed to the ethics department that
agency officials had engaged in gross mismanagement by giving another
employee favorable treatment and generally not requiring her to perform her
duties. IAF, Tab 11 at 7. The administrative judge found that the appellant’s
disclosures that a coworker was treated favorably, and management’s failure to
take formal disciplinary action against her, failed to constitute a nonfrivolous
allegation of gross mismanagement. ID at 6. The appellant does not provide a
reason for disturbing this finding on review. As set forth by the administrative
judge, “gross mismanagement” is a decision that creates a substantial risk of
significant adverse impact upon the agency’s ability to accomplish its mission.
Fisher v. Environmental Protection Agency , 108 M.S.P.R. 296, ¶ 9 (2008). Here,
the appellant has not nonfrivolously alleged that his disclosure evidenced gross
mismanagement. There is no indication that the alleged favoritism and lack of
discipline of a coworker created a substantial risk of a significant impact on the
agency’s ability to accomplish its mission. Rather, as the administrative judge
found, the conduct the appellant took issue with appears to be largely either basic
rudeness or negligence and incompetence, and if proven, would not amount to
gross mismanagement. ID at 6-7.
We remand this case because the parties were not provided proper jurisdictional
notice regarding retaliation for engaging in protected activity under 5 U.S.C.
§ 2302(b)(9)(C).
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). Section 1097(c)(1) of
the National Defense Authorization Act of 2018 (NDAA), Pub. L. No. 115-91,
131 Stat. 1283 (2017), amended section 2302(b)(9)(C) to provide that, in addition6
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.
The Board recently clarified in Reese v. Department of the Navy ,
2025 MSPB 1, ¶ 48, that, in analyzing whether activity is protected under section
2302(b)(9)(C), the key question is whether an appellant’s activity was directed to
a covered investigatory entity. The Board found that agency components as
described in section 2302(b)(9)(C) should have similar attributes and functions to
those of the Offices of Inspector General, although such attributes may vary from
agency to agency. Id., ¶ 50. In general, such components will have a degree of
independence and objectivity, as well as the authority to investigate or review by
taking testimony, collecting evidence, and making findings and recommendations.
Id. Applying these principles, the Board found that the statutory language's
reference to “any” component is broad enough to encompass not just permanent
agency components, but also ad hoc internal investigations or reviews conducted
pursuant to an established agency procedure. Id., ¶ 51.
Here, the appellant asserted that he made his disclosures to the “Ethics
point of contact,” which were also shared with the “Equal Opportunity/Resolution
Mgmt point of contact.” IAF, Tab 1 at 7. However, the administrative judge’s
jurisdictional order cited to the pre-NDAA provisions of 5 U.S.C. § 2302(b)(9)
(C), which exclude the language regarding a disclosure to “any other component
responsible for internal investigation or review.” IAF, Tab 10 at 2 n.1. An
administrative judge must provide the appellant with explicit information on what
is required to establish an appealable jurisdictional issue. Niemi v. Department of
the Interior, 114 M.S.P.R. 143, ¶ 8 (2010) (citing Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985)).
Under some circumstances, the Board might be able to adjudicate a
whistleblower claim such as this without remand. Here, however, the record is
not sufficiently developed to determine whether the entities to which the7
appellant made his disclosures qualify as “any other component responsible for
internal investigation or review” sufficient to render his disclosures “protected
activity” under 5 U.S.C. § 2302(b)(9)(C). Specifically, the record is devoid of
any information regarding what the various departments do, whether they can
conduct internal investigations or reviews, or even the position descriptions for
the identified points of contact. Moreover, it is unclear how and to what extent
the appellant’s communications with the ethics department were “shared” with
the “Equal Opportunity/Resolution Mgmt” point of contact, or whether the
appellant ever explicitly communicated with or provided information to that
department. Accordingly, we remand this appeal so that the administrative judge
may provide proper jurisdictional notice and further develop the record on the
issue of whether the appellant nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C).
On remand, when determining whether the appellant’s disclosures amount
to “protected activity,” the administrative judge should keep in mind that
disclosures under 5 U.S.C. § 2302(b)(9)(C) are protected regardless of their
content.5 See Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8 (finding
that, under the post-NDAA language of 5 U.S.C. § 2302(b)(9)(C), disclosures to
an agency’s Inspector General or to the Special Counsel are protected regardless
of their content). However, the nature and content of the disclosures may be
relevant at the merits stage of an IRA appeal, when an appellant must prove the
contributing factor element by preponderant evidence and the agency can defend
itself by providing clear and convincing evidence that it would have taken the
same personnel action absent the protected activity. Fisher, 2023 MSPB 11, ¶ 8
n.1.
If the administrative judge determines that the appellant nonfrivolously
alleged that he engaged in protected activity, the administrative judge shall make
5 That is, regardless of whether the communications amount to a protected disclosure
under 5 U.S.C. § 2302(b)(8). 8
a finding on whether the appellant nonfrivolously alleged that the protected
activity was a contributing factor in the agency’s decision to take a personnel
action against him. The administrative judge should provide the parties with the
opportunity to supplement the record on the issue of contributing factor.
ORDER
For the reasons discussed above, we REMAND this case to the
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Auguste_FredericPH-1221-19-0235-W-1_Remand_Order.pdf | 2025-02-28 | FREDERIC AUGUSTE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-19-0235-W-1, February 28, 2025 | PH-1221-19-0235-W-1 | NP |
84 | https://www.mspb.gov/decisions/nonprecedential/Serrao_Ravin_J_AT-3443-23-0626-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAVIN JERMAINE SERRAO,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
Agency.DOCKET NUMBER
AT-3443-23-0626-I-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ravin Jermaine Serrao , Lantana, Florida, pro se.
Heather Javida Akram , Esquire, Kennedy Space Center, Florida, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction, finding that his termination upon the
expiration of his temporary internship is not an appealable action. Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
As explained in the initial decision, the appellant was terminated from his
Pathways Internship Employment Program internship on its expiration 120 days
after he received his degree. Initial Appeal File (IAF), Tab 32, Initial Decision
(ID) at 3-4. Though the appellant has not contested this finding on review, he
argues that the coding on the Standard Form 50 (SF-50) documenting his
termination erroneously reflects that he was terminated during probation and that
the agency’s refusal to change the form is retaliatory. Petition for Review (PFR)
File, Tab 2 at 5, 9, 29. For the reasons set forth in the initial decision, we agree
with the administrative judge that the termination of the internship was not an
appealable action under 5 U.S.C. chapter 75. ID at 4. We also agree with the
administrative judge that the Board cannot consider the appellant’s claims of
discrimination, prohibited personnel practices, and hostile work environment
absent an otherwise appealable action. PFR File, Tab 2 at 4-29; ID at 5.
The appellant asserts on review that, in an email provided with his initial
appeal, an agency employee indicated that he would have appeal rights on2
termination because he had completed probation in May 2017. PFR File,
Tab 2 at 4; IAF, Tab 1 at 8. However, as the initial decision correctly explained,
regardless of whether the appellant is an employee with adverse action appeal
rights under 5 U.S.C. chapter 75, the Board lacks jurisdiction over this appeal
because the termination of his internship did not subject him to an appealable
adverse action. See Scull v. Department of Homeland Security , 113 M.S.P.R.
287, ¶ 10 (2010); 5 C.F.R. § 752.401(b)(11); ID at 4 .
On review, the appellant asserts that the agency retaliated against him after
he made claims of discrimination by refusing to change the SF-50 documenting
his termination to reflect that his internship expired rather than stating
“TERMINATION DURING PROB/TRIAL PE.” PFR File, Tab 2 at 5, 9, 29. He
claims that such labeling has barred him from further Federal employment. Id.
However, to the extent the appellant is arguing that the agency’s coding of the
SF-50 as a termination during probation is a reflection of the action it took, we
are not persuaded that a different outcome is warranted. While an SF-50 is
relevant evidence regarding an individual’s status, it is not dispositive. See Scott
v. Department of the Air Force , 113 M.S.P.R. 434, ¶ 8 (2010) (finding that an
SF-50 is not a legally operative document that controls an employee’s status and
rights but is merely the customary documentation for a Federal personnel action).
Furthermore, the other documentation surrounding the agency’s action shows that
the appellant’s separation was due to the expiration of his appointment rather than
for cause. IAF, Tab 20 at 4, 6-7.
Finally, we have reviewed the documents that the appellant has submitted
to support his petition for review. PFR File, Tab 2 at 31, 33, 35. The Board
generally will not consider new evidence raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Clay v. Department of the
Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d). The document
specifying the appellant’s disability was in the record before the administrative3
judge and, therefore, is not new evidence. Meier v. Department of the Interior ,
3 M.S.P.R. 247, 256 (1980); PFR File, Tab 2 at 31; IAF, Tab 6 at 22 . The
appellant submitted an email between him and agency personnel concerning
reasonable accommodation, which could have been submitted before the record in
the initial appeal closed on December 22, 2023. PFR File, Tab 2 at 33; IAF,
Tab 30 at 3. He has not explained why he did not submit it previously. See Fox
v. U.S. Postal Service , 81 M.S.P.R. 522, ¶¶ 4-5 (1999) (explaining that the Board
will not consider evidence submitted for the first time on petition for review
when it was previously available, but a party elected not to file it with the
administrative judge). The appellant has also submitted an undated page of
interrogatories. PFR File, Tab 2 at 35. We find that he has not met his burden to
show that this document was unavailable prior to the close of the record despite
his due diligence . We also find that none of this evidence pertains to the issue of
jurisdiction and is therefore not material to the outcome of the appeal. See Russo
v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 6
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 | Serrao_Ravin_J_AT-3443-23-0626-I-1_Final_Order.pdf | 2025-02-28 | RAVIN JERMAINE SERRAO v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MSPB Docket No. AT-3443-23-0626-I-1, February 28, 2025 | AT-3443-23-0626-I-1 | NP |
85 | https://www.mspb.gov/decisions/nonprecedential/Thomas_JasmineCB-7121-24-0015-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASMINE THOMAS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CB-7121-24-0015-V-1
DATE: February 28, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jasmine Thomas , Glenwood, Illinois, pro se.
Roderick Eves , Esquire, and Christopher R. Lopez , Esquire, St. Louis,
Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a request for review of an arbitration decision
related to her employment with the agency. For the reasons set forth below, we
DISMISS the request for review for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was employed as a Carrier Technician. Request for Review
(RFR) File, Tab 6 at 11. After she filed a grievance related to her employment
with the agency, an arbitrator issued a decision denying the same. Id. at 23-37.
The appellant filed a request for review of the arbitration decision. RFR
File, Tab 1. Notably, in her request for review, she stated that she was not
entitled to veterans’ preference. Id. at 1.
The Office of the Clerk of the Board issued an order, which cited 5 U.S.C.
§ 7121(d), among other things, and stated that the Board has jurisdiction over a
request for review of an arbitration decision if (1) the subject matter of the
grievance is one over which the Board has jurisdiction, (2) the appellant either
(i) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the
arbitrator in connection with the underlying action, or (ii) raises a claim of
discrimination in connection with the underlying action under 5 U.S.C.
§ 2302(b)(1) for the first time with the Board if such allegations could not be
raised in the negotiated grievance procedure, and (3) a final decision has been
issued. RFR File, Tab 2 at 2. The order noted that the appellant has the burden
to prove that the Board has jurisdiction over the request for review, and it
directed her to file evidence and argument in this regard. Id. at 3. The appellant
responded to the order. RFR File, Tabs 4-5.
The agency filed a motion to dismiss, in which it argued, among other
things, that 5 U.S.C. § 7121(d) does not apply to U.S. Postal Service employees,
and the Board lacks jurisdiction over the appellant’s request for review of an
arbitration decision. RFR File, Tab 6 at 8-9 (citing Masdea v. U.S. Postal
Service, 90 M.S.P.R. 556 (2002), Muse v. U.S. Postal Service , 82 M.S.P.R. 164
(1999), and Marjie v. U.S. Postal Service , 70 M.S.P.R. 95 (1996)). The appellant
responded to the agency’s motion. RFR File, Tabs 7-8.2
ANALYSIS
The Office of the Clerk of the Board properly noted the general rule
regarding Board jurisdiction to review an arbitration decision under
5 U.S.C. § 7121(d). RFR File, Tab 2 at 2. However, the appellant does not have
a right to Board review of an arbitration decision because 5 U.S.C. § 7121 does
not apply to the U.S. Postal Service.2 Anderson v. U.S. Postal Service ,
109 M.S.P.R. 558, ¶ 4 (2008); Clements v. U.S. Postal Service , 101 M.S.P.R. 218,
¶ 3 (2006); Marjie, 70 M.S.P.R. at 98. Accordingly, we dismiss the appellant’s
request for review of the arbitration decision for lack of jurisdiction.3 Anderson,
109 M.S.P.R. 558, ¶ 4; Masdea, 90 M.S.P.R. at 558.
NOTICE OF APPEAL RIGHTS4
This is the Board’s final decision on the appellant’s request for review of
the arbitration decision. You may obtain review of this final decision. 5 U.S.C.
§ 7703(a)(1). By statute, the nature of your claims determines the time limit for
seeking such review and the appropriate forum with which to file. 5 U.S.C.
§ 7703(b). Although we offer the following summary of available appeal rights,
the Merit Systems Protection Board does not provide legal advice on which
option is most appropriate for your situation and the rights described below do
not represent a statement of how courts will rule regarding which cases fall
2 We find that the agency’s pleading cured any error in this regard. See, e.g.,
Easterling v. U.S. Postal Service , 110 M.S.P.R. 41, ¶ 11 (2008) (finding that a failure to
provide an appellant with proper jurisdictional notice can be cured if the agency’s
pleadings contain the requisite notice).
3 We acknowledge that certain preference-eligible U.S. Postal Service employees have
Board appeal rights under 5 U.S.C. chapter 75, even if they have already invoked
grievance procedures. Anderson, 109 M.S.P.R. 558, ¶ 6. Because the appellant
indicated in her request for review that she was not entitled to veterans’ preference,
RFR File, Tab 1 at 1, we need not consider whether she has chapter 75 Board appeal
rights.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within their jurisdiction. If you wish to seek review of this final decision, you
should immediately review the law applicable to your claims and carefully follow
all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Thomas_JasmineCB-7121-24-0015-V-1_Final_Order.pdf | 2025-02-28 | JASMINE THOMAS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CB-7121-24-0015-V-1, February 28, 2025 | CB-7121-24-0015-V-1 | NP |
86 | https://www.mspb.gov/decisions/nonprecedential/Nevitt_Mele_B_AT-0845-24-0201-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELE BEAUCHAMP NEVITT,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-24-0201-I-1
DATE: February 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mele Beauchamp Nevitt , Evans, Georgia, pro se.
Maureen Ann Kersey , Tiffany Slade , and Adrienne King ,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal challenging the reconsideration decision of the Office of
Personnel Management (OPM) to collect an overpayment of Federal Employees’
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 System (FERS) annuity benefits for lack of jurisdiction following
OPM’s recission of the reconsideration decision. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
As found by the administrative judge, OPM rescinded its reconsideration
decision and indicated its intent to further review the appellant’s case, which
divests the Board of jurisdiction. Initial Appeal File, Tab 6 at 4, Tab 7, Initial
Decision at 2. If the appellant is dissatisfied with any subsequent OPM final
decision regarding her FERS annuity, she may file a new appeal with the regional
office consistent with the Board’s regulations. 5 U.S.C. § 8461(e)(1); 5 C.F.R.
§ 841.308.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Nevitt_Mele_B_AT-0845-24-0201-I-1_Final_Order.pdf | 2025-02-27 | MELE BEAUCHAMP NEVITT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-24-0201-I-1, February 27, 2025 | AT-0845-24-0201-I-1 | NP |
87 | https://www.mspb.gov/decisions/nonprecedential/Thomas_RachelDC-1221-23-0191-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RACHEL THOMAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-23-0191-W-1
DATE: February 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rachel Thomas , Greenville, North Carolina, pro se.
Monique Smart , Esquire, Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to find that the appellant
engaged in additional protected activity but the agency still rebutted her prima
facie case of reprisal, we AFFIRM the initial decision.
As further detailed in the initial decision, the appellant joined the agency as
a Staff Physician in January 2020. Initial Appeal File (IAF), Tab 15 at 57,
Tab 30, Initial Decision (ID) at 2. She described quickly finding the work
environment problematic for a variety of reasons, many of which involved her
supervisor and one coworker nurse. E.g., IAF, Tab 1 at 21-26; ID at 2. Based on
the appellant’s reporting of the same, the agency engaged in fact -finding that led
to the convening of an Administrative Investigation Board (AIB), during which
the appellant gave testimony. E.g., IAF, Tab 9 at 27-35, 38-168; ID at 2-3.
The AIB issued a January 2022 report, which concluded that the appellant
and the nurse she had complained about had both engaged in misconduct, but the
appellant’s supervisor had not. E.g., IAF, Tab 12 at 45-48, Tab 22 at 23; ID
at 3-4. The report included a number of recommendations, one being that
“[a]ppropriate disciplinary action, up to a [r]eprimand should be taken against”
the appellant for what it characterized as both “disrespectful, insulting, or
obscene language or conduct” and “conduct that is unbecoming of a Federal2
employee.” IAF, Tab 12 at 48. Soon after, the appellant alleges that she emailed
some safety concerns for patients to supervisors and filed a complaint with the
Office of Inspector General (OIG). E.g., IAF, Tab 1 at 25; ID at 4. Then, in
April 2022, the Associate Director notified the appellant that the AIB
investigation was complete and he was recommending administrative action
against her. IAF, Tab 22 at 12-14; ID at 4. Just after, the appellant filed a
May 2022 complaint with the Office of Special Counsel (OSC), alleging
whistleblower reprisal. IAF, Tab 27 at 11-28.
In August 2022, the Primary Care Service Line Chief proposed to
reprimand the appellant based on three charges stemming from revelations from
the AIB investigation. IAF, Tab 9 at 5, 11 -12. Charge 1 alleged that the
appellant misused government equipment in that she engaged in inappropriate
conversations with the nurse she had complained of using government equipment
and information technology while on duty. Id. at 11. Charge 2 alleged that she
exhibited conduct unbecoming a Federal employee when exchanging messages
about another coworker with that nurse and by using the word n**** during her
AIB testimony. Id. Charge 3 alleged that the appellant lacked candor during her
investigatory interview when discussing messages between the appellant and the
nurse about whom she had complained. Id. The appellant responded to the
proposal, id. at 14-17, but the deciding official sustained all the allegations and
the reprimand, id. at 18-19. Following a grievance the appellant filed about the
same, the agency issued an amended reprimand in October 2022, which sustained
only the allegation about the appellant using the word n**** during her AIB
testimony. IAF, Tab 9 at 24-26, Tab 12 at 31-32.
In December 2022, OSC closed its investigation of the alleged
whistleblowing retaliation, IAF, Tab 2, and this IRA appeal followed, IAF, Tab 1.
The administrative judge developed the record and issued a decision on the
written record because the appellant did not request a hearing. E.g., ID at 1; IAF,
Tab 1 at 2. He first made detailed findings about how some, but not all, of the3
allegations the appellant presented in this IRA appeal fell within the Board’s
jurisdiction. ID at 9-11. For example, he explained that the appellant did not
present the requisite nonfrivolous allegations for some claims, and he concluded
that she could not pursue the decision to issue the reprimand because the
appellant elected to challenge that through negotiated grievance procedures. ID
at 10.
Turning to the merits, the administrative judge found that the appellant’s
May 2022 complaint to OSC was protected activity under 5 U.S.C. § 2302(b)(9)
(C). ID at 17. He also found that the appellant met her burden of proving that
she made protected disclosures under 5 U.S.C. § 2302(b)(8) concerning (1) her
coworker nurse violating the appellant’s privacy by accessing the appellant’s
medical records, ID at 19-20, (2) that same coworker nurse misusing work time,
engaging in attendance violations, and attempting to misuse someone else’s
prescription medication, ID at 21-23, and (3) other staff engaging in wrongdoing
that included mishandling a specimen, mishandling faxes to treaters, not
communicating test results and plans with patients, and other patient safety
concerns, ID at 24-28.
The administrative judge then found that the appellant proved that she was
subject to two covered personnel actions, the threat of administrative action by
the Associate Director, which he based on the recommendation for disciplinary
action in the AIB report, and the proposed reprimand by the Chief of Primary
Care Services, but no others that were within the Board’s jurisdiction. ID
at 28-33. The administrative judge further found that the appellant proved that
her protected disclosures and activities were a contributing factor to those
personnel actions. ID at 34-36.
Having determined that the appellant presented this prima facie case of
reprisal, the administrative judge shifted the burden to the agency. Broadly
speaking, he found evidence in support of the actions to be strong, ID at 37-40,
and the motive to retaliate to be small, ID at 40-42. The administrative judge also4
found that there was no substantive or persuasive evidence of comparator
nonwhistleblowers. ID at 42. Weighing these factors together, he concluded the
agency met its burden of proving, by clear and convincing evidence, that it would
have taken the same personnel actions in the absence of the appellant’s protected
whistleblowing disclosures and activity. ID at 36-43.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency did not file a timely response.2
The appellant established a prima facie case of reprisal for some of her claims.
Under 5 U.S.C. § 1214(a)(3), to establish Board jurisdiction over an IRA
appeal, an appellant must prove by preponderant evidence that she exhausted
administrative remedies with OSC before seeking corrective action from the
Board. Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 5. In
addition, an appellant must make nonfrivolous allegations that: (1) she made a
protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected whistleblowing activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or
(D); and (2) the disclosure or activity was a contributing factor in the agency’s
decision to take or fail to take, or threaten to take or fail to take, a personnel
action as defined by 5 U.S.C. § 2302(a)(2)(A). Id., ¶ 8. On review, the appellant
does not challenge any of the administrative judge’s jurisdictional determinations,
and we discern no reason to consider them further.3 See ID at 9-11.
2 After the deadline for filing a timely response to the appellant’s petition for review,
the agency filed a request for extension. PFR File, Tabs 2, 3. The Clerk of the Board
denied that request. PFR File, Tab 4.
3 In her petition, the appellant does allege various wrongdoings on the part of the
agency that were not addressed by the administrative judge. However, many of these
alleged wrongdoings occurred after the initial decision in this appeal and none appear to
be relevant to the claims at issues before us in this IRA appeal. PFR File, Tab 1
at 16-22. To illustrate, the appellant describes insensitive or otherwise inappropriate
responses to her neighbor’s housefire and her own automobile collision with a deer,
both of which occurred around the time of the initial decision in this appeal. Id.
at 18-19. She also discusses problems with her workload after the initial decision in
this appeal. Id. at 19-20. Additionally, the appellant alleges that the agency set her up
for failure from the start of her employment. Id. at 16. With these allegations, the5
After establishing jurisdiction in an IRA appeal such as this, an appellant
must prove her claim by preponderant evidence. Young v. Department of
Homeland Security , 2024 MSPB 18, ¶ 10; Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016). As noted above, the administrative judge found
that the appellant met this burden for some, but not all, of her claims that were
within the Board’s jurisdiction. ID at 17-36. On review, the appellant argues that
she met her burden in two additional ways. First, she suggests that the entirety of
her AIB testimony was protected activity, despite the administrative judge finding
that just some of the disclosures in her testimony were protected. PFR File,
Tab 1 at 9; ID at 7 n.6. On that point, the appellant further argues that if her AIB
testimony was protected, she could not be disciplined for that protected activity,
which included her use of the word n****. PFR File, Tab 1 at 9-10. Next, she
argues that she was subjected to another covered personnel action in the form of a
hostile work environment and the administrative judge erred in finding otherwise.
Id. at 12-15. We agree as to the first of these arguments but not the others.
Section 2302(b)(9)(C) provides protections 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.” 5 U.S.C. § 2302(b)(9)
(C). The administrative judge concluded that the appellant’s AIB testimony was
not covered by this provision because the AIB was an ad hoc entity rather than a
appellant submitted evidence that was not part of the record below, such as images of
the housefire, images of her automobile damage, and email communications about the
same. Id. at 23-47. We will not address these arguments and evidence further because
they are not within the Board’s jurisdiction or material to those matters that are within
the Board’s jurisdiction. See Maddox v. Merit Systems Protection Board , 759 F.2d 9,
10 (Fed. Cir. 1985) (recognizing that the Board’s jurisdiction is not plenary; it is
limited to those matters over which it has been given jurisdiction by law, rule, or
regulation); Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating that
the Board will not grant a petition for review based on new evidence absent a showing
that it is of sufficient weight to warrant an outcome different from that of the initial
decision).6
separate agency component. ID at 7 n.6. We find otherwise. In Reese v.
Department of the Navy , 2025 MSPB 1, ¶ 51, the Board held that the broad
language of the statute protects not just permanent agency components but also ad
hoc investigative internal investigations or reviews conducted pursuant to an
established agency procedure. The Board found that agency components as
described in section 2302(b)(9)(C) should have similar attributes and functions to
those of the Offices of Inspector General, although such attributes may vary from
agency to agency. Id., ¶ 50. In general, such components will have a degree of
independence and objectivity, as well as the authority to investigate or review by
taking testimony, collecting evidence, and making findings and recommendations.
Id.
The appellant’s cooperation with and testimony to the AIB was thus
protected under section 2302(b)(9)(C). However, contrary to the appellant’s
related argument about the same, this does not absolve her of all associated
misconduct. The character and nature of an employee’s whistleblowing can still
be a legitimate basis for discipline. Hamilton v. Department of Veterans Affairs ,
115 M.S.P.R. 673, ¶ 12 (2011) (stating that the whistleblower protection statutory
scheme is not a general license for bad behavior); see Kalil v. Department of
Agriculture, 479 F.3d 821, 825 (Fed. Cir. 2007) (rejecting the appellant’s
argument that once a disclosure qualifies as protected, the character or nature of
that disclosure can never support a disciplinary action); Greenspan v. Department
of Veterans Affairs , 464 F.3d 1297, 1305 (Fed. Cir. 2006) (stating that wrongful
or disruptive conduct is not shielded by the presence of a protected disclosure);
Watson v. Department of Justice , 64 F.3d 1524, 1528 -30 (Fed. Cir. 1995)
(rejecting the appellant’s argument that an adverse action must be based on facts
completely separate and distinct from protected whistleblowing disclosures).
Turning to the appellant’s other argument, that she was subjected to a
hostile work environment that rose to the level of a covered personnel action
under the whistleblower protection statutes, we are not persuaded. The7
administrative judge used the proper analytical framework and provided
well-reasoned findings about the issue. ID at 30-33. He concluded that although
the appellant’s working conditions may have been less than ideal, she did not
prove practical and significant effects that amounted to a significant change in
duties, responsibilities, or working conditions, or any other covered personnel
action. ID at 32-33 (citing, e.g., Skarada v. Department of Veterans Affairs ,
2022 MSPB 17). The appellant disagrees, but she has not presented any basis for
us to disturb the initial decision as to this issue. PFR File, Tab 1 at 12-15. In her
petition, she recounts various alleged unprofessional conduct or other
shortcomings by several coworkers, such as distasteful language, yelling, and
unwarranted accusations of wrongdoing. Id. However, the appellant has not
pointed us to evidence showing that this amounted to a personnel action under the
statute.
In sum, the administrative judge found that the appellant made disclosures
protected by section 2302(b)(8) regarding various actions by the coworker nurse
and patient care issues and she engaged in some activity protected by
section 2302(b)(9)(C) by filing an OSC complaint. ID at 17, 19-28. We modify
the initial decision to find that she engaged in additional activity protected by
section 2302(b)(9)(C) by cooperating with and testifying to the AIB. The
administrative judge also found that the appellant’s protected disclosures and
activity was a contributing factor to two covered personnel actions—the threat of
administrative action and the proposed reprimand. ID at 28-36. We modify the
initial decision to reach the same conclusion about the appellant’s cooperation
with and testimony to the AIB. This protected activity was undoubtedly a
contributing factor to the threat of administrative action and the proposed
reprimand since the AIB formed the basis for each. Compare, e.g., IAF, Tab 12
at 45-48 (AIB conclusions), with IAF, Tab 9 at 11 (proposed reprimand), Tab 17
at 25-26 (threat of administrative action).8
The agency rebutted the appellant’s prima facie case of reprisal.
Even if an appellant establishes that she made a protected disclosure or
engaged in a protected activity that was a contributing factor to the agency’s
personnel action, the Board will not order corrective action if the agency can
show by clear and convincing evidence that it would have taken the action absent
the disclosure or activity. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 23.
Clear and convincing evidence is that measure or degree of proof that produces in
the mind of the trier of fact a firm belief as to the allegations sought to be
established; it is a higher standard than the “preponderance of the evidence”
standard. Id.
In determining whether an agency has met this burden, the Board will
consider all of the relevant factors, including the strength of the agency’s
evidence in support of the 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. Id. The Board does
not view these factors as discrete elements, each of which the agency must prove
by clear and convincing evidence. Id. Rather, the Board will weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
Id. The Board considers all of the evidence presented, including evidence that
detracts from the conclusion that the agency met its burden. Id.
Once again, the administrative judge applied this framework and found that
the agency met its heightened burden. We agree as modified below.
The administrative judge correctly found that the evidence strongly
supported the threat of administrative action and the proposed reprimand. ID
at 38-40. When it took those covered personnel actions, the agency had
significant documentary and testimonial evidence before it. For example, the
agency had screenshots of various distasteful messages between the appellant and
the coworker nurse about whom she had complained, much of which the appellant9
acknowledged during her AIB testimony. E.g., IAF, Tab 12 at 50-53, 78-79. The
agency also had the AIB transcript, in which the appellant stated, “He sent me a
video – a YouTube video of a big ass n**** -- excuse my language -- on a
scooter drinking a CapriSun.” Id. at 80.
On review, the appellant explains her use of the word n**** during the
AIB and argues that it was not deserving of a reprimand or any other discipline.
PFR File, Tab 1 at 4-8. As she has before, the appellant asserts that she was
merely recounting the title of the video sent to her as an example of the kinds of
offensive things this coworker nurse did. She compares her own frank
description as akin to the agency repeating the same in writing as it discussed and
then issued her reprimand. While we recognize the context in which the appellant
used this language, we do not find that it requires a different result. The agency
surely recognized the context as well. Otherwise, one might reasonably expect a
consequence more severe than a written reprimand. As recognized by the
administrative judge, the appellant could have qualified her word choice at the
time, but she did not at her own peril. ID at 39-40.
Next, the appellant disputes the other charges underlying her reprimand,
i.e., the ones not sustained after her grievance. PFR File, Tab 1 at 10-12. For the
misuse of government equipment charge, the appellant states that the agency’s
evidence of the same was “supposedly sent from my personal cellphone off duty
hours although the [agency] charged me erroneously . . . that I misused
government equipment” to send the messages. Compare IAF, Tab 9 at 11, with
PFR File, Tab 1 at 10. She further asserts that the agency did not present the
Board with any examples of inappropriate messages sent from her government
device “because there are none.” PFR File, Tab 1 at 10. Turning to the lack of
candor charge, the appellant explains that she accurately responded to the
agency’s questions by initially stating that she did not recall sending
inappropriate messages, she then genuinely apologized when confronted with
screenshots suggesting otherwise, and she cooperated throughout. Compare IAF,10
Tab 9 at 10, with PFR File, Tab 1 at 10-11. The appellant further suggests that
some of the offending messages may have been altered to make it seem as if she
sent them when she did not. PFR File, Tab 1 at 11.
We have considered these arguments by the appellant, but we are not
persuaded. In determining the strength of the agency’s evidence, the Board
considers the weight of the evidence before the agency when it acted. Soto v.
Department of Veterans Affairs , 2022 MSPB 6, ¶ 13 n.5; Yunus v. Department of
Veterans Affairs , 84 M.S.P.R. 78, ¶ 8 (1999), aff’d, 242 F.3d 1367, 1372 (Fed.
Cir. 2001). At the time of the personnel actions at issue, i.e., the threat of action
in the AIB report and the proposed reprimand that followed, the agency had the
appellant’s own changing testimony about inappropriate messages sent between
her and the nurse on both private platforms and government systems, i.e.,
Facebook and Teams. E.g., IAF, Tab 12 at 59-76. For example, after being
confronted with screenshots about some inappropriate messages between her and
the nurse on Facebook, the appellant acknowledged that she and the nurse sent
competing Teams messages that disparaged the physical appearance and heritage
of a coworker. Id. at 72-73. The agency’s ultimate decision to sustain only the
allegation involving the appellant’s use of the word n**** does not meaningfully
detract from the fact that the agency’s evidence strongly supported the threat of
administrative action and the proposal to reprimand her.
Turning to the motive to retaliate, our analysis must account for any
individual motive to retaliate by the agency officials involved in the challenged
personnel action but also any professional or institutional motive to retaliate.
Young v. Department of Homeland Security , 2024 MSPB 18, ¶ 30; see Robinson
v. Department of Veterans Affairs , 923 F.3d 1004, 1019 -20 (Fed. Cir. 2019).
“Those responsible for the agency’s performance overall may well be motivated
to retaliate even if they are not directly implicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them11
in their capacities as managers and employees.” Whitmore v. Department of
Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012).
As discussed above, the appellant’s entire testimony to the AIB was
protected rather than just certain disclosures within the testimony that the
administrative judge considered. The scope of the AIB investigation included
matters beyond the appellant’s protected disclosures to include, most notably,
complaints that the appellant’s supervisor caused a hostile work environment and
sexual harassment, or she otherwise allowed both to permeate the workplace. ID
at 3 n.3; IAF, Tab 12 at 45. The AIB concluded that there was no evidence of
the supervisor engaging in the alleged wrongdoing. IAF, Tab 22 at 23.
Nevertheless, we modify the initial decision to account for this additional
protected activity.
The administrative judge found that relevant officials had some motive to
retaliate because her protected disclosures during the AIB implicated agency
supervision and management writ large. ID at 40-42. We find that motive
heightened by the remainder of the appellant’s AIB testimony and cooperation,
generally. This remains the case, even though the appellant’s supervisor was not
the agency official responsible for the threat of administrative action or the
proposal to reprimand the appellant. See IAF, Tab 1 at 9-10 (proposed reprimand
by Chief), 21-23 (appellant’s identification of her supervisor as the Section Chief
along with allegations of her supervisor’s wrongdoing, and the appellant’s
identification of the individual who proposed her reprimand as the Service Line
Chief), Tab 22 at 14 (threat of administrative action by Associate Director).
Although relevant officials to the contested personnel actions had no apparent
personal motive to retaliate for the appellant’s protected disclosures and
activities, they did have a noteworthy institutional motive to retaliate. Thus, this
factor favors the appellant.
Regarding similarly situated nonwhistleblowers, the agency alleged that
some were treated the same as the appellant. But the administrative judge found12
that the agency did not present persuasive evidence about such individuals. ID
at 42. Thus, he found that this factor was of little relevance or at best cut slightly
against the agency. Id. We discern no reason to conclude differently.4 Only
evidence reflecting the agency’s treatment of similarly situated nonwhistleblower
employees is relevant to Carr factor 3. Wilson v. Department of Veterans Affairs ,
2022 MSPB 7, ¶ 67. The risk associated with not producing such evidence falls
on the Government. Id.
Weighing the Carr factors together, the administrative judge concluded that
the agency proved by clear and convincing evidence that it would have taken the
same personnel actions, i.e., the threat of administrative action and the proposed
reprimand, in the absence of the appellant’s protected disclosures and activities.
ID at 43. We have reweighed the Carr factors to account for the additional
activity that we found protected, i.e., the entirety of the appellant’s cooperation
with the AIB. Yet we reach the same conclusion. Relevant officials had a
notable motive to retaliate, and the agency did not present persuasive evidence
showing that it treated similarly situated non -whistleblowers in a similar way.
However, the evidence in support of the contested personnel actions was very
strong, and we are left with a firm belief that the agency would have taken the
same personnel actions in the absence of the appellant’s protected disclosures and
activities.
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
4 The agency took personnel actions against the appellant’s coworker nurse after the
conclusion of the AIB, but the record suggests that he is not a valid comparator because
he also attained whistleblower status by cooperating with the AIB. See, e.g., IAF,
Tab 22 at 10, 21, 24-25, 67-69.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular14
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 15
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of16
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 | Thomas_RachelDC-1221-23-0191-W-1_Final_Order.pdf | 2025-02-27 | RACHEL THOMAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-23-0191-W-1, February 27, 2025 | DC-1221-23-0191-W-1 | NP |
88 | https://www.mspb.gov/decisions/nonprecedential/Sinclair_Antonio_L_AT-0752-16-0376-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTONIO LAMAR SINCLAIR,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-16-0376-X-1
DATE: February 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marion L. Williams , Warner Robins, Georgia, for the appellant.
Biron Ross , Esquire, Warner Robins, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
In a November 1, 2022 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the final decision in the underlying
appeal. Sinclair v. Department of the Air Force , MSPB Docket No. AT-0752-16-
0376-C-1, Compliance File (CF), Tab 6, Compliance Initial Decision (CID) at 5.
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
For the reasons discussed below, we find the agency in compliance and DISMISS
the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
On July 22, 2022, the Board issued a Final Order affirming the initial
decision in the appellant’s underlying appeal, which directed the agency to cancel
the appellant’s removal, substitute a 5-day suspension, and pay the appellant the
correct amount of back pay, including benefits. CID at 2. On September 27, 2022,
the appellant filed a petition for enforcement, contending that the agency had failed
to pay him any back pay. Id. at 1-2. The appellant also requested additional
damages and alleged that the agency had incorrectly stated that he owed a debt to
the government. Id. at 2-4.
On November 1, 2022, the administrative judge issued a compliance initial
decision granting the petition for enforcement, in part. Id. at 5. The administrative
judge denied the appellant’s request for additional damages, but she ordered the
agency to pay the appellant his back pay with a narrative explanation of the
payment calculation and to immediately cease all collection actions for an
overpayment, unless the agency was able to justify that such an overpayment
existed. Id. at 5.2
On December 7, 2022, the Board issued an Acknowledgement Order
notifying the parties that a new docket number had been assigned, reflecting the
referral of the matter to the Board for a final compliance determination. Sinclair v.
Department of the Air Force , MSPB Docket No. AT-0752-16-0376-X-1,
2 The compliance initial decision informed the agency that, if it took the actions ordered
by the decision, it must submit to the Clerk of the Board, within the time limit for filing a
petition for review under 5 C.F.R. § 1201.114(e), a statement that it has taken the actions
identified in the compliance initial decision, along with evidence establishing that it has
taken those actions. CID at 5-6; 5 C.F.R. § 1201.183(a)(6)(i) (2022). The compliance
initial decision also informed the parties that they could file a petition for review if they
disagreed with the compliance initial decision. CID at 6-11; see 5 C.F.R. §§ 1201.114(e),
1201.183(a)(6)(ii) (2022). Neither party petitioned for review of the compliance initial
decision.2
Compliance Referral File (CRF), Tab 1 at 2. The order notified the agency that it
was required to file evidence of compliance within 15 calendar days of the date of
the order, and specifically informed the appellant that if he failed to file a response
to the agency’s evidence of compliance within 20 calendar days, the Board might
assume that he was satisfied and dismiss the petition for enforcement. Id. at 3.
On December 22, 2022, the agency filed a response to the Acknowledgement
Order, contending that it changed the appellant’s personnel record to cancel his
removal and reflect a 5-day suspension and sent a request for back pay to its finance
organization, the Defense Finance and Accounting Service (DFAS). CRF, Tab 2
at 5. The agency provided Standard Form 50 Notifications of Personnel Action
cancelling the appellant’s removal and replacing it with a suspension and returning
him to duty, effective February 3, 2016. Id. at 8-10. The agency requested an
extension of time until February 28, 2023, to finish processing the back pay. Id.
at 6. On December 29, 2022, the appellant filed a response contending that the
agency continued to debit his pay and had not yet paid him back pay. CRF, Tab 3
at 3. The appellant requested damages and sanctions. Id.
On January 9, 2023, the Clerk of the Board granted the agency’s request for
an extension until February 28, 2023. CRF, Tab 4 at 1. On February 28, 2023, the
agency requested another extension of time, until May 28, 2023, to achieve full
compliance. CRF, Tab 5 at 4. The Clerk of the Board granted the agency’s request
on March 1, 2023. CRF, Tab 6 at 1. On May 30, 2023, the agency requested
another extension of time, until June 30, 2023, to achieve full compliance. CRF,
Tab 7 at 4. The Clerk of the Board granted the agency’s request on May 31, 2023.
CRF, Tab 8 at 1. On May 31, 2023, the appellant filed a response opposing the
agency’s request for extension of time. CRF, Tab 9 at 3.
On June 30, 2023, the agency filed a submission entitled “Additional
Evidence of Compliance,” asserting that it was still attempting to resolve back pay
issues identified by DFAS and requesting a further extension of time until
August 31, 2023. CRF, Tab 10 at 4-5. On the same day, the appellant filed a3
response to the agency’s submission, requesting sanctions and opposing any further
extension of time. CRF, Tab 11 at 3. On August 9, 2023, the appellant filed an
additional request for damages. CRF, Tab 13 at 3.
On November 7, 2023, the agency finally filed its “Compliance
Documentation,” asserting that it had made the corrections to the appellant’s
records, paid the appellant’s back pay and interest, and resolved all back pay
issues. CRF, Tab 14 at 4. The agency’s submission included spreadsheets
documenting the calculations of the appellant’s back pay and interest. Id. at 6-21.
On September 6, 2024, the agency filed a second submission documenting
compliance, reflecting that it had credited the appellant with leave and detailing the
overpayment that caused the appellant’s debt. CRF, Tab 15. The appellant has not
filed responses to the agency’s November 7, 2023, and September 6, 2024
compliance submissions.
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. 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).
Here, the agency filed evidence that it had mitigated the appellant’s removal
to a 5-day suspension. CRF, Tab 2 at 8-10. The agency also submitted data
breaking down the appellant’s back pay by pay period for the time from the
appellant’s removal, effective January 29, 2016, to his interim appointment,4
effective December 21, 2016; a Back Pay Computation Summary Report, that
provided a detailed computation of the interest due on the back pay; and a DFAS
remedy ticket that detailed the appellant’s back pay, including a performance
award which was re -processed, deductions, and interest on the back pay, resulting
in a net payment of $44,502.01. CRF, Tab 14 at 6-21. Finally, the agency
submitted evidence that the appellant’s leave had been restored, as well as evidence
regarding the calculation of his debt, which was offset, although the agency did not
explain the debt calculations. CRF, Tab 15 at 6-11.
The appellant did not respond to the agency’s calculation of his back pay,
interest, leave, or debt despite being apprised that the Board might construe his lack
of response as satisfaction with the agency’s response. Accordingly, taking into
account the appellant’s failure to respond, we find that the agency is now in full
compliance with the February 25, 2022 decision.
With respect to the appellant’s request for damages, the Board’s
November 1, 2022 opinion previously held that the Back Pay Act does not permit
the payment of consequential damages. CID at 4. Accordingly, the appellant’s
request for damages is denied.
Regarding the appellant’s request for sanctions, we deny the request. The
Board’s sanction authority is limited to the sanctions necessary to obtain
compliance with a Board order. Mercado v. Office of Personnel Management ,
115 M.S.P.R. 65 ¶ 8 (2010) (stating that the Board’s ability to award sanctions is a
means to enforce compliance, and once compliance has been demonstrated, it
would be inappropriate to impose sanctions). Because the agency has complied
with the Board’s orders, we are without authority to impose sanctions in this
matter.
In light of the foregoing, we find that the agency is in compliance with its
outstanding compliance obligations and dismiss the appellant’s petition for
enforcement. This is the final decision of the Merit Systems Protection Board in5
this compliance proceeding. Title 5 of the Code of Federal Regulations,
section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of the
United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you
believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must
file your attorney fees motion with the office that issued the initial decision on your
appeal.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such review
and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we
offer the following summary of available appeal rights, the Merit Systems
Protection Board does not provide legal advice on which option is most appropriate
for your situation and the rights described below do not represent a statement of
how courts will rule regarding which cases fall within their jurisdiction. If you
wish to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated the
notice of review rights included in final decisions. As indicated in the notice, the Board
cannot advise which option is most appropriate in any matter.6
Please read carefully each of the three main possible choices of review below
to decide which one applies to your particular case. If you have questions about
whether a particular forum is the appropriate one to review your case, you should
contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination .
This option applies to you only if you have claimed that you were affected by an
action that is appealable to the Board and that such action was based, in whole or in
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil7
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017).
If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than
30 calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives this decision before you do, then you must file with the
EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 200138
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals
of competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)
(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July
7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.
1510.9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Sinclair_Antonio_L_AT-0752-16-0376-X-1_Final_Order.pdf | 2025-02-27 | ANTONIO LAMAR SINCLAIR v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-16-0376-X-1, February 27, 2025 | AT-0752-16-0376-C-1; AT-0752-16-0376-X-1 | NP |
89 | https://www.mspb.gov/decisions/nonprecedential/Abraham_ShownNY-315H-24-0183-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHOWN ABRAHAM,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
NY-315H-24-0183-I-1
DATE: February 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shown Abraham , Holtsville, New York, pro se.
Daniel C. Mullenix , Esquire, and Lakeshia Silas , Chicago, Illinois, for the
agency.
Joseph Blanton , New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On petition
for review, the appellant argues the merits of her termination. Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of the
law to the facts of the case; the administrative judge’s rulings during either the
course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM the
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
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 you were affected by an
action that is appealable to the Board and that such action was based, in whole or in3
part, on unlawful discrimination. If so, you may obtain judicial review of this
decision—including a disposition of your discrimination claims —by filing a civil
action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the
Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C.
§ 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If
you have a representative in this case, and your representative receives this
decision before you do, then you must file with the district court no later than 30
calendar days after your representative receives this decision. If the action
involves a claim of discrimination based on race, color, religion, sex, national
origin, or a disabling condition, you may be entitled to representation by a court-
appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or
other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding all
other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and
your representative receives 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 | Abraham_ShownNY-315H-24-0183-I-1_Final_Order.pdf | 2025-02-27 | SHOWN ABRAHAM v. DEPARTMENT OF THE TREASURY, MSPB Docket No. NY-315H-24-0183-I-1, February 27, 2025 | NY-315H-24-0183-I-1 | NP |
90 | https://www.mspb.gov/decisions/nonprecedential/Holman_Kali_M_AT-0752-19-0608-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KALI MARY HOLMAN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-0752-19-0608-I-2
DATE: February 27, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kali Mary Holman , Phenix City, Alabama, pro se.
Nic Roberts , Fort Moore, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115
(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under section 1201.115
for granting the petition for review. Therefore, we DENY the petition for review.
Except as expressly MODIFIED to vacate the administrative judge’s alternative
finding that the appellant’s allegations would not rise to the level of sexual
harassment under Title VII, we AFFIRM the initial decision.
BACKGROUND
The appellant was a GS-07 Purchasing Agent for the agency. Initial
Appeal File (IAF), Tab 1 at 6. Effective July 14, 2019, she resigned from her
position. Id. She subsequently filed a Board appeal, alleging that she was forced
to resign due to “impermissible harassment.” IAF, Tab 1 at 3. The
administrative judge informed the appellant of her burden of proof to establish
Board jurisdiction over her appeal and ordered her to file evidence and argument
establishing that her resignation was involuntary. IAF, Tab 3. The
administrative judge determined that the appellant was entitled to a hearing
because she raised nonfrivolous allegations of Board jurisdiction. IAF, Tab 6.
In an Order and Notice of Hearing and Prehearing Conference, the
administrative judge notified the parties that any prehearing submissions,
including exhibits, were to be received on or before October 18, 2019.
IAF, Tab 5. In a Summary of the Telephonic Prehearing Conference, the2
administrative judge stated that she expected the parties to move their exhibits
into the record at the hearing. IAF, Tab 15. During the hearing, the
administrative judge ruled on the parties’ exhibits. IAF, Tab 19, Hearing
Compact Disc (HCD). Following the hearing, the appellant filed a
November 3, 2019 motion to submit additional exhibits. IAF, Tab 20. The
agency objected to the admission of additional exhibits as untimely, duplicative,
and irrelevant. IAF, Tab 21.
Thereafter, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction, finding that the appellant did not prove by
preponderant evidence that her resignation was involuntary. IAF, Tab 23, Initial
Decision (ID) at 1. In particular, the administrative judge noted that the appellant
did not establish that her working conditions were so intolerable that a reasonable
person in her position would have felt compelled to resign. ID at 9-12.
The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant did not prove that her resignation was involuntary based on
intolerable working conditions.
An employee-initiated action, such as a resignation, is presumed to be
voluntary and thus outside the Board’s jurisdiction. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). However, an appellant can prove
Board jurisdiction over a resignation as a constructive removal by showing that
(1) she lacked a meaningful choice in the matter, and (2) it was the agency’s
wrongful actions that deprived her of that choice. Bean v. U.S. Postal Service ,
120 M.S.P.R. 397, ¶ 8 (2013). Various fact patterns can support a finding of
constructive removal, including a showing that the appellant resigned due to
intolerable working conditions. Id., ¶¶ 7-8. Intolerable working conditions may
render an action involuntary if the appellant demonstrates that the agency
engaged in a course of action that made working conditions so difficult or3
unpleasant that a reasonable person in her position would have felt compelled to
resign. Searcy, 114 M.S.P.R. 281, ¶ 12. In constructive adverse action appeals,
nonfrivolous allegations do not establish jurisdiction; rather, the appellant must
prove by preponderant evidence that the action was involuntary. Abbott v. U.S.
Postal Service, 121 M.S.P.R. 294, ¶ 8 (2014).
When discrimination or retaliation is alleged in connection with a
determination of involuntariness, evidence of discrimination or retaliation may
only be addressed insofar as it relates to the issue of voluntariness and not
whether such evidence meets the test for proof of discrimination and reprisal
under Title VII. Markon v. Department of State, 71 M.S.P.R. 574, 578 (1996).
Thus, evidence of discrimination or retaliation goes to the ultimate question of
coercion, namely, whether, under all of the circumstances, working conditions
were made so difficult by the agency that a reasonable person in the employee’s
position would have felt compelled to resign. Id.
We agree with the administrative judge that the appellant did not prove by
preponderant evidence that her resignation was involuntary based on intolerable
working conditions. ID at 9-12. In reaching this determination, the
administrative judge considered the appellant’s allegations that the agency
subjected her to sexual harassment, failed to select her for multiple positions, and
issued her a leave restriction letter, a letter of caution, and a notice of suspension.
ID at 10-11; IAF, Tab 4. The administrative judge found that there was
insufficient evidence to support the appellant’s claims that the most egregious
circumstances occurred and that there was insufficient evidence to conclude that
employees made inappropriate sexual statements within earshot. ID at 11.
Furthermore, the administrative judge did not credit the appellant’s testimony that
her supervisors yelled at her, called her names, inappropriately monitored her,
and denied her leave. ID at 11-12. Finally, the administrative judge found that,
although the evidence established that the appellant had her car keyed or
scratched and was subjected to statements that she found insulting, the appellant4
failed to prove that a reasonable person in her position and circumstances would
have felt compelled to resign. ID at 12; see Brown v. U.S. Postal Service ,
115 M.S.P.R. 609, ¶ 15 (finding that an employee is not guaranteed a stress-free
working environment, and enduring unfair criticism and unpleasant working
conditions generally is not so intolerable as to compel a reasonable person to
resign), aff’d, 469 F. App’x 852 (Fed. Cir. 2011) .
On review, the appellant generally asserts that the initial decision “told a
different story” than her testimony, which, in her view, supports her involuntary
resignation claim. PFR File, Tab 1 at 4. To the extent the appellant is
challenging the administrative judge’s decision to not credit her testimony, the
Board must give deference to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); 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”). In finding that
the appellant’s testimony was not credible, the administrative judge considered
the factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987). ID at 9-12. Among other things, the administrative judge noted that the
appellant’s testimony was not corroborated by other witnesses, unsupported by
the record evidence, and lacking in relevant details. ID at 9-12. Because the
administrative judge heard live testimony in this case, her credibility
determinations were at least implicitly based upon the appellant’s demeanor.
Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009). Based on
the foregoing, we find that the appellant has not shown that there are sufficiently
sound reasons for overturning the administrative judge’s decision to not credit her
testimony.5
Regarding the appellant’s allegation that the administrative judge omitted
important facts that came out in cross-examination, PFR File, Tab 1 at 4, she did
not identify any such facts. Moreover, an administrative judge’s failure to
mention all of the evidence of record does not mean that she did not consider it in
reaching her decision, Marques v. Department of Health & Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
The appellant also asserts that the administrative judge improperly
described the case law regarding Title VII sexual harassment. PFR File, Tab 1
at 4-5. In the initial decision, the administrative judge stated that, even if she
were to find that the alleged sexually explicit statements were made and intended
in the manner in which the appellant claims, they would not rise to the level of
sexual harassment under Title VII. ID at 10 (citing Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986)). Because the Board lacks jurisdiction over this
appeal, we do not consider the appellant’s allegations under the Title VII
standard. See Cruz v. Department of the Navy , 934 F.2d 1240, 1245-46 (Fed. Cir.
1991) (en banc) (finding that, absent an otherwise appealable action, the Board
lacks jurisdiction to consider allegations of discrimination and retaliation);
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (stating that prohibited
personnel practices under 5 U.S.C. § 2302(b) are not an independent source of
Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982)).
Thus, we modify the initial decision to vacate the administrative judge’s
alternative finding that the appellant’s allegations would not rise to the level of
sexual harassment under Title VII. In light of the above, we discern no basis for
disturbing the administrative judge’s finding that the appellant failed to prove
that the agency coerced her resignation.2
2 The appellant alleges on review that she “could not afford an attorney due to
involuntary resignation from retaliation for filing an equal employment opportunity
[EEO] complaint.” PFR File, Tab 1 at 4. To the extent the appellant is raising a claim
of EEO retaliation, we find that it does not, in and of itself, establish that a reasonable
person in her position would have felt compelled to resign. See Axsom v. Department of6
Procedural issues and alleged bias
On review, the appellant asserts that she submitted exhibits below that the
administrative judge did not consider. PFR File, Tab 1 at 3. She describes the
exhibits as including emails concerning her leave usage, emails concerning the
Top Secret clearance requirement for her new position, flight itineraries, a
memorial program for a deceased family member, and pictures of her computer
error network issues. PFR File, Tab 1 at 7; IAF, Tab 20 at 4.
As previously noted, in an order and notice of hearing and prehearing
conference, the administrative judge stated that all exhibits were to be received
on or before October 18, 2019. IAF, Tab 5 at 1-2. In her November 3, 2019
motion to submit additional exhibits, the appellant indicates that she attempted to
submit a pleading containing additional exhibits on October 17, 2019, but that she
had technical difficulties submitting the pleading through e -Appeal due its size.
IAF, Tab 20 at 4. She asserts that the Board acknowledged receipt of her package
via certified mail on October 18, 2019 but that the administrative judge did not
have these exhibits at the hearing.3 PFR File, Tab 1 at 3, 7.
The appellant appears to be alleging that the administrative judge failed to
rule on her additional exhibits during the hearing and failed to rule on her
November 3, 2019 motion to submit additional exhibits. PFR File, Tab 1 at 3, 7.
However, the appellant has not explained how these additional exhibits are
material to the dispositive jurisdictional issue. IAF, Tab 20 at 4. Therefore, her
allegations in this regard provide no basis for disturbing the initial decision. See
Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48, ¶ 12 (2004) (finding
that, to obtain reversal of an initial decision on the ground that the administrative
Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009). The appellant filed an EEO complaint
before her resignation; thus, she had the option to pursue that complaint rather than
resign. See id. Moreover, there is no indication that the agency handled her EEO
complaint inequitably or that any challenge to an improper agency action would have
been futile. See id.
3 As previously noted, the administrative judge ruled on the parties’ exhibits during the
hearing. HCD.7
judge abused his discretion in excluding evidence, the petitioning party must
show on review that relevant evidence, which could have affected the outcome,
was disallowed), aff’d, 121 F. App’x 865 (Fed. Cir. 2005).
The appellant contends that the administrative judge was biased against her
because she did not have legal representation. PFR File, Tab 1 at 4. The Board
has long held that, in making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980) . An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if her
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) . The appellant has not identified any conduct by
the administrative judge that would reflect antagonism or favoritism, nor has she
raised any allegations that would support a finding of bias. The fact that an
administrative judge ruled against the appellant is insufficient evidence to show
bias. Coufal v. Department of Justice , 98 M.S.P.R. 31, ¶ 11 (2004). Thus, we
find that the appellant has not overcome the presumption of honesty and integrity
that accompanies an administrative judge.
Accordingly, we affirm the initial decision as modified herein.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
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
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the10
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court11
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. 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 | Holman_Kali_M_AT-0752-19-0608-I-2_Final_Order.pdf | 2025-02-27 | KALI MARY HOLMAN v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-0752-19-0608-I-2, February 27, 2025 | AT-0752-19-0608-I-2 | NP |
91 | https://www.mspb.gov/decisions/nonprecedential/Owens_Timmie_P_AT-1221-23-0196-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMMIE PERNELL OWENS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
AT-1221-23-0196-W-1
DATE: February 26, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Howard Lee Jones , Vicksburg, Mississippi, for the appellant.
Jennifer S. Williams , John M. Breland , and Nedra R. Frisby , Vicksburg,
Mississippi, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal (IRA) for lack of jurisdiction. On
petition for review, the appellant does not challenge any of the administrative
judge’s findings but rather generally reiterates his arguments below that the
agency removed him because of his protected whistleblower activity. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to clarify the IRA
exhaustion requirement, we AFFIRM the initial decision.
The administrative judge found that the appellant failed to prove that he
exhausted the required administrative remedies with the Office of Special
Counsel (OSC) with respect to any alleged disclosures. Initial Appeal File (IAF)
Tab 27, Initial Decision (ID) at 4-5. The substantive requirements of exhaustion
are met when an appellant has provided OSC with sufficient basis to pursue an
investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶ 10. An appellant may demonstrate exhaustion through his initial OSC
complaint or correspondence with OSC. Id., ¶ 11. In the alternative, exhaustion
may be proved through other sufficiently reliable evidence, such as an affidavit or2
declaration attesting that the appellant raised with OSC the substance of the facts
in his Board appeal or an unrebutted certified statement to this effect on an
appellant’s initial appeal form. Id. & n.7. To the extent that the administrative
judge advised that the appellant must have described to OSC the “precise ground”
of his claims, we find that this description of the exhaustion requirement was
overly restrictive. ID at 4; IAF, Tab 3 at 3. Nonetheless, the administrative
judge’s statement regarding the standard for exhaustion was harmless because
even applying the proper, less restrictive standard, the appellant failed to prove
that he exhausted his administrative remedies as to any disclosures beyond the
racial discrimination claim identified in his OSC complaint. 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).
Accordingly, we affirm the administrative judge’s initial decision as
modified above.
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
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
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Owens_Timmie_P_AT-1221-23-0196-W-1_Final_Order.pdf | 2025-02-26 | TIMMIE PERNELL OWENS v. DEPARTMENT OF THE ARMY, MSPB Docket No. AT-1221-23-0196-W-1, February 26, 2025 | AT-1221-23-0196-W-1 | NP |
92 | https://www.mspb.gov/decisions/nonprecedential/Jiang_YishanSF-315H-24-0411-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YI SHAN JIANG,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-315H-24-0411-I-1
DATE: February 26, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Kleinman , Esquire, Houston, Texas, for the appellant.
Arnulfo Urias , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant reargues that 5 C.F.R. § 315.806 is a source of
jurisdiction because her termination was based on preappointment 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).
without the procedures of 5 C.F.R. § 315.805, and because the agency terminated
her due to political discrimination against Chinese nationals. Generally, we grant
petitions such as 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 | Jiang_YishanSF-315H-24-0411-I-1_Final_Order.pdf | 2025-02-26 | YI SHAN JIANG v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-315H-24-0411-I-1, February 26, 2025 | SF-315H-24-0411-I-1 | NP |
93 | https://www.mspb.gov/decisions/nonprecedential/Doe_JohnDC-0752-23-0271-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE,1
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-23-0271-I-1
DATE: February 26, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL2
Peter Broida , Esquire, Arlington, Virginia, for the appellant.
William Horrigan , Esquire, and Josh Hildreth , Esquire, Alexandria,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal as settled. The appellant does not dispute the dismissal of
1 The Board finds it appropriate to grant the appellant’s request for anonymity in this
matter. Accordingly, this matter has been recaptioned as “John Doe.” Additionally, the
initial decision in this matter has been recaptioned as “John Doe.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
her appeal as settled; instead, she challenges the administrative judge’s decision
to deny her request to recaption the appeal to provide John Doe status. Petition
for Review (PFR) File, Tab 1. For the reasons we discuss below, we GRANT the
appellant’s petition for review and allow the appellant to proceed anonymously in
John Doe status. Except with respect to the granting of anonymity, the initial
decision is otherwise AFFIRMED, and the appeal remains dismissed as settled.
The relevant facts are as follows. The agency terminated the appellant
from her position as a GS-13 Marketing and Communications Specialist during
what it believed was her probationary period. Initial Appeal File (IAF), Tab 1
at 10, Tab 26 at 10. However, the appellant had more than 2 years of continuous
service based on her prior Federal service, and therefore, at the time of her
termination, she was an “employee” under chapter 75 and was entitled to notice
and an opportunity to respond to her proposed termination, which she had not
been provided. IAF, Tab 1 at 6, 11-21, Tab 5 at 1-2. The agency conceded as
much was true, canceled the appellant’s termination, and reinstated her to her
position while her Board appeal was pending. IAF, Tab 26 at 6, 15-17.
The parties then engaged in settlement efforts and produced an executed
settlement agreement which, among other things, included a provision that the
parties would file a consent motion to recaption the appeal to John Doe status.
IAF, Tab 41 at 5. The appellant filed this joint motion to recaption the appeal,
arguing that John Doe status was warranted given the public and searchable
nature of Board initial decisions, the unique spelling of her name, and the fact
that her Board appeal was docketed with the 0752 docket number, suggesting an
adverse action had occurred, and so the use of her real, non -pseudonymous name
could “compromise [her] future employment prospects by reference in the
Board’s record of her name in an otherwise unexplained adverse action
proceeding.” IAF, Tab 40 at 1-2. The administrative judge issued an order
denying the motion to recaption the appeal, IAF, Tab 42, and then issued an2
initial decision dismissing the appeal as settled, IAF, Tab 43, Initial Decision
(ID).
On review, the appellant argues that the administrative judge erred in
denying her request to recaption her appeal. The Board has not adopted a rigid,
mechanical test for determining whether to grant anonymity but instead applies
certain general principles and considers several factors in making such
determinations. Pinegar v. Federal Election Commission , 105 M.S.P.R. 677, ¶ 10
(2007). Here, we find several factors weigh in favor of granting the appellant’s
request for John Doe status. First, we are strongly persuaded by the fact that this
appeal was the result of agency error, and the parties included in a negotiated
settlement agreement a provision to file a consent motion requesting John Doe
status. Additionally, we are persuaded by the fact that the appellant, who has a
unique name, works as a Marketing and Communications Specialist, and there is a
stronger risk of reputational harm in that occupation. Accordingly, for these
reasons, we find it appropriate to allow the appellant to proceed anonymously and
grant the appellant John Doe status. The initial decision, dismissing the appeal as
settled, is otherwise affirmed.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
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
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Doe_JohnDC-0752-23-0271-I-1_Final_Order.pdf | 2025-02-26 | null | DC-0752-23-0271-I-1 | NP |
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